Friday, September 18, 2009

Do national judges ever proceed on the basis of provisional protection ?

In principle, upon publication - Art.67 EPC and Art.69(2) - of a European application (assuming you comply with the national requirements - National Law Table III), you are granted provisional rights.

Theoretically, you can then go to a judge and invoke the right against an infringer.
However, the scope of your provisional protection can change retroactively, so you are potentially liable for damages if on grant, there is no infringement.
I see that Hungary has quite a long section in the National Law Table III.A, column 2. For most other states, it creates a liability for damages.

My question is - does anyone ever try to sue an infringer based solely on provisional protection?


  1. It is possible in France, but the judge has to stay the proceedings till the patent is granted. That solves the problem !

  2. Hi Laurent you told about France.Can you add the information about law in UK about a similar situation as one of my friend in UK asked me about the same and I did not had any answers.