In a decision of 26 January 2015, the Antwerp Court of Appeal decided to refer some preliminary questions to the Court of Justice of the European Union (CJEU) in a patent infringement action brought by United Video Properties (UVP) against Telenet.Says the IPKat, it's plain from the wording of the questions that the referring court, omitting the word "patent", contemplates a ruling that encompasses all forms of IP litigation and not merely patent suits. The CJEU, however, has a track record of not giving answers that run wider than the facts of the underlying national litigation. While it is important to take account of considerations of procedural economy and of not extending a ruling beyond points on which the parties are prepared to argue, it seems immediately apparent to this Kat that there is a more important reason for answering the Antwerp court's broad questions quite narrowly. The words "reasonable and proportional legal costs" are likely to measured by quite different yardsticks in patent litigation than in cases involving trade marks, copyright or designs and the relatively short life of the patent and the impact of technological obsolescence may justify additional expenditure. While it is always annoying to have to keep returning to the CJEU to get it to amplify or fine-tune earlier rulings, that may still be more desirable than giving a broad ruling that causes subsequent injustice or inconvenience to national trial courts.
[and thankfully not 2002, as an earlier version of this blogpost erroneously stated] the President of the Antwerp Commercial Court revoked the Belgian part of United Video Properties' patent for lack of novelty. UVP appealed to the Antwerp Court of Appeal but, after a negative decision in the United Kingdom on the UK part of the same patent (in proceedings against Virgin Media), UVP withdrew its appeal. This meant that the only issue that remained to be decided was the costs.
Telenet argued that, if Belgian law as it stands today were to be applied,
* it would only recover a small part of its attorney fees. The Belgian Act of 21 April 2007 and a Royal Decree of 26 October 2007 indeed provide that only small capped amounts can be recovered from the losing party as compensation for the attorney fees of the successful party.Accordingly, argued Telenet, Belgian law violates Article 14 of IP Enforcement Directive 2004/48 ["Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this"] and asked the Antwerp Court of Appeal to refer preliminary questions to the CJEU. On 26 January 2015 the Antwerp Court of Appeal in essence asked the CJEU whether Article 14 may be interpreted as authorising
* it would not recover the fees it paid to its patent attorney as Belgian case law only provides for the possibility to recover this type of costs where the unsuccessful party acted wrongfully and the fees were incurred in consequence of that wrongdoing.
* a system of small capped amounts as provided for by the Belgian Act of 21 April 2007 and a Royal Decree of 26 October 2007,We believe this case potentially has a huge European impact, as Belgium is not the only Member State to have a system under which only a small part of the real attorney fees can be recovered from the losing party in a IP dispute.
* case law that holds that the successful party can recover the fees it paid to a technical expert only when the losing party acted wrongfully.
|Every successful IP|
litigant's costs dream ...