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31

CLIP papers on Intellectual Property in Brussels I and Rome I Regulations

The European Max-Planck Group for Conflict of Laws in Intellectual Property (CLIP) is a group of scholars in the fields of intellectual property and private international law that was established in 2004 with the aim of drafting a set of principles for conflict of laws in intellectual property and to provide independent advice to European and national law makers. It is funded by the Max-Planck Society.

Two very interesting papers recently released by CLIP have been published on the website of Max Planck Institute for Comparative and International Private Law (Hamburg).

The purpose of the first document ("Exclusive Jurisdiction and Cross Border IP (Patent) Infringement – Suggestions for Amendment of the Brussels I Regulation") is to provide input for the report to be prepared by the Commission on the functioning in practice of the Brussels I Regulation, and to submit proposals for its amendment (see Art. 73 of the Regulation).

32

Last Issue of Revue Critique de Droit International Privé

The last issue of one of the two French leading journals of international private law, the Revue Critique de Droit International Privé (2006), was released last week. In addition to several case commentaries, it contains three articles. Unfortunately and contrary to previous practices, the Revue does not provide any abstract for any of them, even in French.

The first article is from Dr. Hunter-Henin from UCL. Its title is "Droit des personnes et droits de l'homme : Combinaison ou confrontation" (Family Law and Human Rights: Can They Go Along or Do They Exclude Each Other?). I am grateful to her for providing me with the following abstract:

Developments in European Family Law via EC Regulations or fequent recourse to the right to respect for private and family life under article 8 of the European Convention on Human Rights have increased individual freedom. However, the concepts of personhood, family and personal status have as a result lost some of their meaning and permanence.

33

Symposium: “International Litigation In Intellectual Property And Information Technology”

The symposium is organized by the Unité de droit international privé of the ULB (Université Libre de Bruxelles) in the framework of the project on Judicial Cooperation in Matters of Intellectual Property and Information Technology, co-financed by the European Commission, and will take place in Brussels on Friday, March 2nd 2007.

It is a follow-up to an earlier roundtable, held in Heidelberg in late 2006 (a background paper prepared for the Heidelberg meeting can be found here; other interesting preliminary documents dealing with specific topics are available here). As stated on the symposium programme, a number of key issues related to cross-border IP litigation will be addressed, in the light of recent case-law of the European Court of Justice (GAT and Roche judgments, on which a number of recent posts can be found on our website) and legislative proposals (Rome II Regulation):

How should the applicable procedural framework be organized to guarantee at the same time an effective protection of intellectual property rights and legal certainty? Which court has jurisdiction to entertain actions relating to foreign rights and/or relating to infringements perpetrated trough the internet? Is it still possible to consolidate proceedings relating to parallel IP rights after the decisions of the European Court of Justice in the GAT and Roche cases? What are the means to collect evidence located abroad in cross-border IP cases? What is the role and scope of preliminary and protective measures in IP international litigation?

34

Seminar: Jurisdiction in IP Disputes

BIICL This seminar is part of the British Institute’s seminar series on private international law which will run throughout the Autumn of 2006 and well into 2007 entitled Private International Law in the UK: Current Topics and Changing Landscapes.

Date: Monday 22nd January 2007, 15.00 – 17.00

Location: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

Speakers:

Subject matter:

Two ECJ judgments of 13 July 2006 – GAT v. LuK and Roche Nederland BV – have stirred much concern in the patent community. It was ruled that contrary to practice presently established in some Member States the courts in the country of registration are exclusively competent to adjudicate validity, even when the issue of validity only arises as an incidental matter. Further it has been held that it is also not possible to join claims against affiliated companies for coordinated infringement of European bundle patents before the courts in the country where the principal office steering the activities has its seat.

The seminar will feature an in-depth discussion of the implications for the English practice of the recent ECJ cases referred to. It will further explore current issues in England and Wales and other European jurisdictions relative to the subject of jurisdiction in cross-border IP cases.

35

Is Cross-Border Relief in European Patent Litigation at an End?

Marc Doring and Francis van Velsen have written an article in the Journal of Intellectual Property Law & Practice entitled, “Is cross-border relief in European patent litigation at an end?” (J.I.P.L.P. 2006, 1(13), 858-860). Here’s the first paragraph of the article:

The ECJ decisions in GAT v LuK and Roche v Primus appear to have prohibited cross-border relief, bringing the Dutch and the German patents courts (which were willing to grant such relief in certain circumstances) in line with the English Patents Court (which has always refused to grant such relief). However, the decisions still enable the Dutch and German patents courts to continue to grant cross-border relief in certain circumstances. Whether they will do so remains to be seen.

Those with a subscription to the Journal can download the article from the J.I.P.L.P. website. You can browse some of our other posts on these two ECJ decisions here.

36

Jurisdiction over Defences and Connected Claims

There is a case note in the latest issue of the Lloyd's Maritime & Commercial Law Quarterly (L.M.C.L.Q. 2006, 4(Nov), 447-452) by Adrian Briggs (Oxford University) on "Jurisdiction over Defences and Connected Claims", which:

Criticises the interpretation by the European Court of Justice of the provisions of Council Regulation 44/2001 allowing similar cases to be heard together to avoid irreconcilable differences in precedent, where they refused to hear claims together in the cases of Gesellschaft fur Antriebstechnik mbH & Co KG (GAT) v Lamellen und Kupplungsbau Beteiligungs KG (LuK) (C-4/03) and Roche Nederland BV v Primus (C-539/03).

37

A Farewell to Cross-Border Injunctions?

Annette Kur (Max Planck Institute for Intellectual Property, Competition and Tax Law) has written an article in the latest issue of the International Review of Intellectual Property and Competition Law (IIC 2006, 37(7), 844-855) entitled, "A Farewell to Cross-Border Injunctions? The ECJ Decisions GAT v. LuK and Roche Nederland v. Primus and Goldenberg". The abstract states [links to the judgments have been inserted]:

The two ECJ judgments of 13 July 2006 – GAT v. LuK and Roche Nederland – have stirred much concern in the patent community. On the basis of its reasoning, which is amazingly brief both in view of the complexity of the issues decided and the length of the time it has taken the court to ponder about its decisions, it was ruled that contrary to practice presently established in some Member Countries, the courts in the country of registration are exclusively competent to adjudicate validity, even when it only arises as an incidental matter. It is also not possible to join claims against affiliated companies for coordinated infringement of European bundle patents before the courts in the country where the principal office steering the activities has its seat.

You can see our summary of GAT v Luk here. You may also be interested in reading the contemporary ECJ case of Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (13 July 2006), which is summarised here.

38

Jurisdiction over European Patent Disputes, and the European Payment Procedure Order

Richard Taylor (DLA Piper) has written a short summary in the latest issue of the Law Society Gazette, discussing the response by the European Court of Justice, in Roche Nederland BV v Primus (C-539/03) and in Gesellschaft fur Antriebstechnik mbH & Co KG (GAT) v Lamellen und Kupplungsbau Beteiligungs KG (LuK) (C-4/03), to attempts by European courts to extend their jurisdiction over European patent disputes, referring to the provisions of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968.

Ref: Law Society's Gazette L.S.G. (2006) Vol.103 No.39 Page 31

In other news, the European Parliament's second reading of the proposal for the adoption of a Regulation of the European Parliament and of the Council creating a European order for payment procedure is scheduled for the 23rd October 2006.

39

Art 16(4) of the Brussels Convention: exclusive jurisdiction in relation to patents

Case C-4/03 Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG (13th July 2006) concerned a reference from the Oberlandesgericht Düsseldorf (Germany) to the ECJ for a preliminary ruling on the interpretation of Article 16(4) of the Brussels Convention.

The Oberlandesgericht (Higher Regional Court) Düsseldorf sought, in essence, to ascertain the scope of the exclusive jurisdiction provided for in Article 16(4) of the Convention in relation to patents. It asked whether that rule concerns all proceedings concerned with the registration or validity of a patent, irrespective of whether the question is raised by way of an action or a plea in objection, or whether its application is limited solely to those cases in which the question of a patent’s registration or validity is raised by way of an action.