Why urgency is critical for injunctive relief in Greece
Injunctions and cease-and-desist claims against infringers can protect patent holders in most jurisdictions. The process of filing of a cease-and-desist claim is straightforward, but the relevant judicial proceedings may take a long time before a court decision is issued. Therefore, patent holders often need to seek injunctive relief in order to obtain a cease-and-desist order as soon as possible.
When it comes to injunction claims, many jurisdictions’ legal systems require proof of urgency to justify the relief. Similarly, Greek law allows injunctions only in cases where there is “imminent danger” or it is an “urgent case”. Under Greek law, ‘imminent danger’ is defined as a threat that, in order to be prevented, must be dealt with immediately. An ‘urgent case’ requires immediate regulation in order to avoid irreparable situations that are difficult to reverse. In other words, patent holders asking for an injunction must act soon after they discover infringement. If they do not, the injunction request may be dismissed for lack of urgency.
It is common knowledge that the EPO may take some time to grant European patents – the process can, in many cases, last for several years. The most common practice for rights holders is to wait until their application is granted and, afterwards, have the European patent validated in the relevant jurisdictions. In cases where infringement occurs – and the patent holder finds out about it – after the patent has been granted and validated in these countries, then the infringed party can act immediately to protect their already awarded rights.
When infringement occurs before the patent is granted
Articles 64 and 67 of the European Patent Convention and Articles 17 and 23 of the Greek Patent Law (1733/1987) establish that in cases of infringement or threatened infringement, European patent rights will be granted to the applicant from the date that it submitted a certified Greek translation of the application claims to the Greek Patent Office. Therefore, patent applicants can be protected against infringers on the basis of their application, even before the patent is granted. Article 17 of the Greek Patent Law also provides that the court may postpone the hearing of the case until the patent has been granted. This is designed to avoid situations where there is still legal uncertainty on whether the patent would be granted or not.
Urgency in practice
In practice, most European patent applicants do not file a translation of their application claims at the Greek Patent Office and thus do not enjoy provisional protection. The Greek courts’ ability to postpone is one of the reasons for this.
However, this omission may prove crucial in cases where applicants decide to initiate injunction proceedings against infringers after their European patent has been granted and validated in Greece, even if the infringement occurred beforehand. The Athens Court of First Instance recently ruled on a case where this exact scenario occurred. The European patent holder failed to carry out the process under which it could enjoy provisional protection and instead initiated injunction proceedings only after the patent had been granted. However, the infringement had occurred prior to the grant.
The court considered that there was material reason for the European patent applicant to submit the translation of the claims and file the injunction application before the patent was granted, irrespective of the possibility that the court might postpone the hearing until the patent was granted. The court ruled that, had the applicant proceeded to undergo the process to enjoy provisional protection, they would be perfectly entitled to file the injunction and pursue the cease-and-desist request much earlier. Under the circumstances, and the fact that the infringement (while still ongoing) began a few years ago, the court dismissed the injunction application due to lack of urgency.
Of course, this decision does not at all affect a possible main cease-and-desist claim as there is no urgency requirement for that. However, it still displays how the court interprets the urgency requirement and how urgency can be eliminated to the applicants’ detriment.
Ultimately, European patent applicants should seek provisional protection of their patent application, so that they are able and entitled to pursue eventual infringers by means of an injunction, at any time prior to the grant of their patent. This is despite the fact that the court is entitled to postpone the hearing until after the patent is granted – this possibility cannot be used as an excuse for failing to seek provisional protection. Otherwise, European patent applicants may be deprived of injunctive relief for typical procedural reasons, and applicants should bear this in mind.
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