The following table illustrates some differences in patent litigation between the US, the UK and the EU.
| US | UK | EU | |
| Court | Federal Court | England & Wales have special Patent Courts at the County and High Court level | European Commission and/or as proscribed by the member state’s national court system. For example, Germany has 4 special patent courts in Manheim, Dusseldorf, Munich and Hamburg. |
| Lawyers | All attorneys can argue before the court | Only barristers are allowed to argue. Not solicitors. | In most countries (but not for example in England or Wales), all attorneys can argue before the court in the country the attorney is licensed to practice |
| Claim Construction | Markman hearing for claim construction in the middle of pretrial litigation. | Conducted at trial as part of liability phase. Catnic Components Ltd. v. Hill & South Ltd. (1981) FSR 60, | Conducted at trial as part of liability phase. Article 69 European Patent Convention and related Protocol. |
| Validity & Infringement | These issues are usually heard together in the same court. | These issues are usually heard together in the same court. | In Germany, 2 different courts hear these. 1 hears Validity arguments, and another hears Infringement arguments. |
| Preliminary Injunctions on manufacture, offer for sale & sales | Very difficult to get. Cannot get if you don’t practice the patent. | Less difficult to obtain in cases where generic pharmaceutical could impact patent holder. | Germany: Still difficult to get, but getting a bit easier as long as equivalents are not invoked. Often applied for during industry shows to disgrace a competitor. France also permits. “Saisie-contrefaçon” orders. |
| Freezing Injunctions | Not heard of in patent cases. | Also known as Mareva injunctions, assets can be frozen so that they can’t be moved or hidden. See also Intellectual Property (Enforcement, etc.) Regulations 2006. | Permitted in some countries. EC: Article 9(2) of the Information Society Directive; France: “décret 2008-624″ of June 27, 2008. |
| Search Warrant | Unheard of in patent cases. | Can be obtained to prevent infringing goods and important documents from being hidden or destroyed. CPR 25.1(1)(h). | Germany they are permitted, and often used in conjunction with a preliminary injuction at industry shows to disgrace a competitor. |
| Discovery | Very extensive. Methods include: Initial disclosures; Multiple Requests for Interrogatories, Document Production, Product Inspection and Admissions that do not require application to the court; and Depositions of fact and expert witnesses | Less extensive. Discovery must be proportionate to the case. Rule 1.1(2)(c). Initial Disclosures meant to cover most of discovery; A party must apply to the court for further interrogatories, documents, and product inspection. CPR 18.1 & 25 | Less extensive. Discovery must be proportionate to the case. Initial Disclosures meant to cover most of discovery; A party must apply to the court for further interrogatories, documents, and product inspection. Reg 2004/48/EC. |
| Witnesses | There is no duty to disclose exactly what a witness will testify to. It is up to the opposing party to depose the witness. | Complete witness statements must be submitted to the Court. CPR 32-34. Witnesses cannot testify in court as to what is already in their statements. | Complete witness statements must be submitted to the Court. Witnesses cannot testify in court as to what is already in their statements. For example, in Germany, usually only experts are cross-examined. |
| Doctrine of Equivalents | Available to argue and often prevails. | Not permitted, but the court can view the language of the patent through the perspective of one skilled in the art to see if it covers the alleged infringing activity. | Available, but very difficult to prove. |
| Damages | Lost profits or Reasonable Royalty. Can’t have both. Treble damages, which are arguably punitive/exemplary, are allowed in exceptional cases of infringement | Mix of Lost Profits, Royalty, Increased Royalty, and Springboard, but no punitive or exemplary damages. Capped at £500k in County Court. | Mix of Lost Profits, Royalty, Increased Royalty, and Springboard, but no punitive or exemplary damages. |
| Attorneys’ Fees | Only awarded in exceptional cases of blatant infringement | Always awarded. Capped at £50k in County Court. | Always awarded. Fees are expected to be far less than US counterparts because litigation is more limited than in the US. For Example, in Germany, Fees should not run more than 3% of the value of the litigation. |
| Trial | Jury available; Damages are usually not bifurcated from the liability trial | No Jury; Damages are bifurcated from the liability trial | No Jury; Damages are bifurcated from the liability trial |