1.

Legal framework

1.1

Which laws and regulations govern patent litigation in your jurisdiction?

1.2

Which bilateral and multilateral agreements with relevance to patent litigation have effect in your jurisdiction?

1.3

Which courts and/or agencies are responsible for interpreting and enforcing the patent laws? What is the framework for doing so?

2.

Forum

2.1

In what forum(s) is patent litigation heard in your jurisdiction? Are patent infringement and validity decided in the same forum or separate forums?

2.2

Who hears and decides patent disputes (eg, a judge, a panel and/or a jury)?

2.3

Are there any opportunities for forum shopping in your jurisdiction? If so, where and how do those opportunities exist?

3.

Parties

3.1

Who has standing to file suit for patent infringement? What requirements and restrictions apply in this regard?

3.2

Can a patent infringement suit be brought against a defendant who is a foreign entity with only a residence or place of business outside the jurisdiction?

3.3

Can a single infringement action be brought against multiple defendants? What requirements and restrictions apply in this regard?

3.4

Can a third party seek a declaration of non-infringement or invalidity in your jurisdiction? If so, how?

4.

Patent infringement

4.1

What constitutes patent infringement in your jurisdiction?

4.2

How is infringement determined?

4.3

Does your jurisdiction apply the doctrine of equivalents?

4.4

Is wilful infringement recognised? If so, what is the applicable standard?

5.

Bringing a claim

5.1

What measures can a patent holder take to enforce its rights in your jurisdiction? Are interim measures available before receiving a ruling on the merits?

5.2

What is the limitation period for patent infringement in your jurisdiction?

5.3

Must the alleged infringer be notified in advance before a claim is brought?

5.4

What are the procedural and substantive requirements for bringing a claim for patent infringement? How much detail must be presented in the complaint?

5.5

Are interim remedies available in patent litigation in your jurisdiction? If so, how are they obtained and what form do they take?

5.6

Under what circumstances must security for costs and/or damages incurred by the other party be provided?

6.

Disclosure and privilege

6.1

What rules on disclosure apply in your jurisdiction? Do any exceptions apply?

6.2

What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

6.3

What rules on privilege apply in your jurisdiction? Do any exceptions apply?

7.

Evidence

7.1

What procedure(s) exist for collecting and presenting evidence in patent infringement litigation?

7.2

What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

7.3

What are the applicable standards of proof?

7.4

On whom does the burden of proof rest?

8.

Claim construction

8.1

Is there a procedure for construing claims during a patent infringement action? If so, when and how is it performed?

8.2

What is the legal standard used to define disputed claim terms?

8.3

What evidence does the court consider in defining the claim terms?

8.4

Can the claims of a patent be amended in the course of the proceedings?

9.

Defences and counterclaims

9.1

What defences are typically available in patent litigation?

9.2

Can the defendant counterclaim for revocation or invalidation of the patent? If so, on what grounds and what is the process for doing so?

9.3

Are there any grounds on which an otherwise valid patent may be deemed unenforceable against a defendant?

10.

Settlement

10.1

Are mediation and/or other forms of settlement discussions required by the court in your jurisdiction or merely optional to the parties?

10.2

Can the proceedings be stayed or discontinued in view of settlement discussions?

10.3

Is it necessary to report the results of settlement discussions to the court? If so, how; and what are the implications?

11.

Court proceedings for infringement and validity

11.1

Are court proceedings in your jurisdiction public or private? If public, are any options available to the parties to keep the proceedings or related information confidential?

11.2

Procedurally, what are the main steps in patent infringement proceedings in your jurisdiction? Is patent validity handled in the same proceedings as infringement or is it handled separately? If separate validity proceedings are available, what are the main steps in those proceedings?

11.3

What is the typical timeframe for patent infringement proceedings? If separate patent validity proceedings are available, with is the typical timeframe for those proceedings?

11.4

To what extent do the decisions of national or foreign courts or bodies influence the court’s decision?

12.

Remedies

12.1

What remedies for infringement are available to a patent holder in your jurisdiction?

12.2

Are punitive or enhanced damages available in your jurisdiction? If so, how are they determined?

12.3

What factors will the courts consider when deciding on the quantum of damages?

13.

Appeals

13.1

Can the decision of a first instance court or body be appealed? If so, on what grounds and what is the process for doing so? Please also describe the availability and process for additional levels of appeal.

13.2

What is the average time for each level of appeal in your jurisdiction?

14.

Costs, fees and funding

14.1

What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

14.2

Are contingency fee and/or other alternative fee arrangements permitted in your jurisdiction?

14.3

Is third-party litigation funding permitted in your jurisdiction?

15.

Trends and predictions

16.

Tips and traps

Comparative Guides

Login to Mondaq.com

Why Register with Mondaq

Your Organisation