Court rules on burden of proof in patented process case
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Court rules on burden of proof in patented process case

burden-min-final.jpg

The reversal of burden of proof in civil proceedings concerning the enforcement of rights for patents for processes is a provision that exists in the laws of many countries, including Greece.

The same provision is included in Article 34 of TRIPS. This gives judicial authorities the power to order the defendants to prove that their process is not infringing.

The defendant's burden of proof is laid down in Article 17 Paragraph 6 of Law 1733/87, which provides that "if the invention relates to a process for the manufacture of a product, each product of the same nature is presumed to have been manufactured according to the protected process."

Article 34 of TRIPS imposes an additional condition for the infringement presumption to apply. In order for this to apply, the product obtained by the patented process must be new.

The issue of which conditions should apply for the reversal of burden of proof to be ordered was examined in a recent judgment from the Athens Single Member Court of First Instance hearing a preliminary injunction application based on a patent with process claims. In these proceedings, the patentee was relying on the reversal of burden of proof as regards infringement of the patented process. The defendant objected, arguing that the reversal of burden of proof cannot apply under the circumstances, since the product obtained under the process was not new. The objection was based on Article 34.1a of TRIPS and the defendant argued that these provisions of TRIPS overrule the broader provisions of national law.

The court rejected the objection and found the national law provisions applicable. In its judgment it referred to CJEU judgment C-414/11 and ruled that, in view of this judgment, TRIPS does not have a direct effect on the member states, given that the rules of the TRIPS Agreement fall within the meaning of "commercial aspects of intellectual property" and by extension, the "common commercial policy" and fall within the exclusive competence of the EU, based on the provisions of TFEU Articles 3.1(e) and 207.1.

kilimiris-constantinos.jpg

Constantinos Kilimiris


Patrinos & Kilimiris

7, Hatziyianni Mexi Str.

GR-11528 Athens

Greece

Tel: +30210 7222906, 7222050

Fax: +30210 7222889

info@patrinoskilimiris.com

www.patrinoskilimiris.com

more from across site and ros bottom lb

More from across our site

The Grand Board said the applied-for mark would ‘trivialise’ one of the deadliest pandemics in history
Tim Chen Saulsbury explains why single-craft artisans inspire him and how, even at home, he’s never too far from another IP lawyer
The firm also plans to build an entertainment practice group and up its IP and antitrust offerings with a focus on foreign clients
An intimate understanding of a client’s sector is essential to winning new business, a survey of over 28,000 corporate counsel reveals
Counsel say a Federal Circuit ruling on the obviousness test for design patents may increase the time IP owners spend defending their rights
With INTA Annual Meeting over for another year, here are a few things Managing IP learned after attending IP’s biggest party
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Four sources reveal which tools they have been using – or building – to help them with a range of tasks from invention generation to claim sufficiency
Managing IP reveals Wednesday's highlights, including a discussion on how AI is helping lawyers improve their "gut instinct" trademark decisions
Managing IP reveals Tuesday’s highlights, including an illuminating discussion celebrating women in the workplace and the challenges that remain
Gift this article