This case study differs from those used for previous judges' symposia.
As in the real legal world, there is a statement of claim and a defence, but they already contain all the parties' submissions, including the arguments which in the normal course of proceedings would be presented as further written submissions in the reply and the rejoinder. They also contain all the evidence needed to decide the case.
What is also unusual about the case study this time is that, for part of it, you will need to apply the future European law on the European patent with unitary effect. Otherwise, the existing law under the European Patent Convention and the Lugano Convention serving as a parallel agreement to the Brussels I Regulation on jurisdiction applies. The relevant provisions are provided in Annex 5.
Naturally it is your job as judges to establish the facts and points of law, based on the parties' submissions. But, to make your lives easier, we will give you some clues.
What makes the case stand out? The claimant is based in Estonia, the defendant in Switzerland. The allegedly infringing extractor hoods are manufactured outside the EU, but transported through EU member states and sold in certain EU states – and they are advertised. Can the court rule on all the claims and the counterclaim?
This first part of the study, on jurisdiction, is followed by the "real" heart of any infringement case. Is the patent in suit valid in view of the prior art? If so, does the allegedly infringing subject-matter fall within the scope of protection conferred by the patent? This case is an ideal example because it concerns the interpretation of a single feature of the claim.
It is for you, Europe's "patent judges", to decide the case. Divide yourselves by language into three groups, elect a chairperson and vote on the case once you have discussed it. The majority decides but minority votes are permitted. Then report back to the plenary session.
The documents you will need for your deliberations can be found in the annexes:
1. Statement of claim
3. Patent in suit EP 1 234 567
4. Citation EP 1134 501
5. Legal provisions
Date retrieved: 30 December 2018