Infringement

Patent infringement is established if an invention protected by a patent is used unlawfully. Contributory infringement is established if any third person sells or offers to sell means for realizing the object of the invention, if he knows or it is obvious that said means can only be used for that purpose. The patentee or the license owner (if the license is entered in the patent register) can start a lawsuit against the infringer and request that:

• the fact of the infringement be officially established,

• the infringer cease the infringement or acts directly threatening with infringement and refrain from further infringing activity.

• the infringer be obliged to deliver information relating to the manufacture, trade, business relations and other circumstances in connection with the infringing products and services,

• the infringer should publicly declare his regret for having committed infringement,

• the enrichment obtained through the infringement be restituted,

• the means used for committing the infringement and the infringing products be seized by the court,

• the infringing means and products be divested of their infringing character or be destroyed or withdrawn from channels of commerce, furthermore,

• an infringement gives cause for the compensation of damages according to the general rules of the civil code.

 

The burden of proof is reversed in the case of infringement of a patented method as follows: a product - until proof is acknowledged to the contrary - is to be considered as one made by the patented method if the product is new and there is a high likelihood that it has been made by the patented method and if the patentee, after having taken every expectable step, could not determine the actual manufacturing method of the product. The likelihood that the product has been made by the patented method is especially high if the patented method constitutes the only known method.

Information obtainable from the infringer by means of injunction especially includes the names of manufacturers, distributors, revenues and quantities.

Although the patent enforcement system has been already harmonized with the TRIPS Agreement, the circle of the available enforcement tools of patent holders have been extended due to the implementation of Directive 48/2004/EC (Enforcement Directive).

It is possible to request the court to obtain evidence prior to the filing of the main claim in the event the patentee renders the infringement possible.

A preliminary injunction can be requested at the commencement of a legal action or thereafter or even prior to the filing of the main court claim. In order for an injunction to be granted, it must be shown that without the injunction imminent and direct damages cannot be averted or the existing status of the litigants which gave rise to the dispute cannot be preserved.

It must also be shown that the advantages of the preliminary injunction are likely to outweigh its disadvantages. With regard to this requirement there is a legal presumption if the request is filed within 60 days from the date when the patentee was informed on the infringement but this cannot be later than 6 months following the defendant’s unlawful activity.

The court should set a date for hearing the parties or should request the defendant to produce a written response.

The court can request the plaintiff to deposit a security to cover the possible damages caused if the injunction proves to be unjustifiable.

An appeal can be filed against the preliminary injunction but the injunction will remain in effect until the appeal court decides to set it aside or until the final decision on the merits of the case enters into force.

The request for preliminary injunction can be filed repeatedly if any new relevant fact emerges.

Under certain conditions detailed by the law, request for the termination of the infringement and for providing data may be claimed against third parties too.

The right holder may request the court to order, under conditions applicable to provisional measures:

a) protective measures, if able to verify that any subsequent attempt for the recovery of profits made by the infringement or the payment of damages is in jeopardy;

b) the infringer to notify of and to present bank, financial or commercial information and documents for the purpose of ordering the protective measures referred to in Paragraph a);

c) the provision of security if in exchange the proprietor agrees for the infringer to continue the alleged acts of infringement. The court, upon the petition of the defendant, may oblige the plaintiff to provide a security deposit before ordering the preliminary injunction.