Managing IP is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

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

Counsel are eying domestic industry, concurrent PTAB proceedings and heightened scrutiny of cases before institution
Jack Daniel’s has a good chance of winning its dispute over dog toys, but SCOTUS will still want to protect free speech, predict sources
AI users and lawyers discuss why the rulebook for registering AI-generated content may create problems and needs further work
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
A technical effect must still be evident in the original patent filing, the EBoA said in its G2/21 decision today, March 23
Brands should not be deterred from pursuing lookalike producers, and an unfair advantage claim could be the key, say Emma Teichmann and Geoff Steward at Stobbs
Justice Mellor’s highly anticipated ruling surprised SEP owners and reassured implementers that the UK may not be so hostile after all
The England and Wales High Court's judgment comes ahead of a separate hearing concerning one of the patents-in-suit at the EPO
While the rules allow foreign firms to open local offices and offer IP services, a ban on litigation and practising Indian law could mean little will change
A New York federal court heard oral arguments this week in a copyright case pitting publishing giants against a digital library