An Inquiry into the Standard of Substantive Patent Law Infringement in Cross-Border Constellations
5. Patent Infringement
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Infringement provisions enshrined in national patent laws mark a frontier between the prohibited and admissible acts with regards to patented inventions. In the current versions of most patent laws, they are usually formulated as an exhaustive catalogue of acts, which cannot be practiced by anyone without the permission of the right holder.796 Without the infringement provisions, enforcement of patents would not be possible. They stand at the heart of patent law both as a legal institution and as a policy tool.
However, as acknowledged above, enforcement of patent rights against infringers is a complex process that takes place in a specific legal, procedural, and institutional context determined by national law. Firth points out that the diverging outcomes of similar cases may be strongly affected by procedural law or substantive law related to claim construction, rather than a blunt difference in a legal test of a specific infringing act.797 Nevertheless, Firth notes that in Europe even the infringement provisions themselves,798 and in addition their interpretation, demonstrate degrees of variation, leading to diverging outcomes, even when the proceedings are based on an unbundled patent rights stemming from the common, “bundled” European patent application.799
As such, consideration of patent infringement cannot be limited to the study of the infringement provisions as formulated in the law alone. Rather, the legal and institutional context as well as the jurisprudence in light of which the black letter law is applied must be considered. In order to incorporate this consideration into the...
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