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Enforcement of Patents on Geographically Divisible Inventions

An Inquiry into the Standard of Substantive Patent Law Infringement in Cross-Border Constellations


Agnieszka Kupzok

This work investigates the challenges of enforcement of patent rights in geographically divisible inventions. It considers aspects of technological progress which pose challenges to the established system of patent protection based on the territorial limitation of rights. The analysis focuses on substantive patent law, especially on the infringement provisions. It is carried out in the context of Internet-related inventions, which demonstrate an extraordinarily construed technical nature, namely geographical divisibility. This leads to the inquiry of whether the infringement standard is appropriate in relation to the technological development in ICTs.
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7. Policy implications

← 298 | 299 →7. Policy implications


The examples from case law both in Germany and the United Kingdom indicate the increased readiness of the courts to create a legal fiction, whereby elements physically located outside the borders of the state, for which they have jurisdiction, are construed as being within that jurisdiction for the purpose of substantive examination of a patent infringement. The case law from the United States reinforces this trend.

While some of the cases turned on the issue of indirect infringement, it has been argued that the emergence, development, and currently established presence of the network technologies leads to the situation, where constellations involving geographically divisible inventions will become commonplace.1404 In these constellations courts must negotiate their way between providing legitimately claimed relief to right holders and following the well established norms and rules, based on the territorial delimitation of patents. In other words, Courts have taken over the role of the legislators and policy makers, of establishing a new balance for geographically divisible inventions. Such situation cannot be an acceptable status quo. Courts cannot be expected to choose between established principles, in a situation where the choice of one of them compromises the other. Courts’ role is to fill in the gaps of interpretation of the black letter rule. It is the task of the legislative body and the realm of political decision-making to define those rules. This chapter considers the available options, as discussed in the literature, as well as the potential of two current proposals to serve as...

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