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Enforcement through the courts
At trial What level of expertise can a patent owner expect from the courts? Greece has two specialised community trademark and patent courts in Athens and Thessaloniki. The judges who serve in these courts are highly qualified graduates of the National School of Judges, where they received special training in IP law. Although they have a high level of knowledge in IP matters, they have no technical background. Consequently, in patent cases involving complex technical issues, their expertise may prove insufficient. This gap is filled by expert opinions, which play a key role in the outcome of cases. Expert opinions can of course further delay proceedings by at least 18 months; however, at least in complex patent cases, the use of expert opinions by patent owners is indispensable.
In preliminary patent proceedings, the local courts – which have no expertise regarding patent law – are considered the competent court.
Are cases decided by one judge, a panel of judges or a jury? In preliminary proceedings cases are decided by one judge, whereas main proceedings are decided by three judges.
If jury trials do exist, what is the process for deciding whether a case should be put to a jury? Jury trials do not exist in Greece.
What role can and do expert witnesses play in proceedings? Expert witnesses may testify before the court either orally or by affidavit. Expert opinions are often pivotal to the outcome of proceedings, particularly in complex cases, since patent judges have excellent legal knowledge, but no technical background. Therefore, experts play a key role in the outcome of proceedings. Judges tend to give the opinion of a distinguished expert more weight than that of a non-technical person.
Does your jurisdiction apply a doctrine of equivalents and, if so, how? Greek law generally accepts the doctrine of equivalence. According to this doctrine, due account must be taken of any element which is equivalent to an element specified in the claims. However, case law is not particularly sophisticated in this respect.
Is it possible to obtain preliminary injunctions? If so, under what circumstances? In order for a petitioner to obtain a preliminary injunction, it must prove that there is a prima facie serious infringement and that the issue is a matter of urgency. If the court accepts the preliminary injunction, the petitioner must also file a main infringement action.
How are issues around infringement and validity treated in your jurisdiction? The plaintiff and defendant present technical expert opinions with regard to the infringement or validity of the patent. If one of these issues is disputed, the court will typically order a court-appointed expert opinion.
Will courts consider decisions in cases involving similar issues from other jurisdictions? Greek courts consider established case law and case law from other jurisdictions; however, precedent is not binding on the courts.
Damages and remedies Can the successful party obtain costs from the losing party? According to Civil Proceeding Rules, the losing party must pay the legal fees of the winning party. The exact amount of legal fees is determined by the court. The amount is often calculated on a conservative basis, not including all attorneys’ fees. However, as EU Directive 48/2004 has been implemented in Greek law, the courts are now obliged to determine the actual legal fees. If a plaintiff asks for compensation, the related court costs (to be paid initially by the plaintiff) are approximately 1.1% of the requested amount. This amount must be added to the lawyers’ fees. In this case, the legal fees determined by the court are much higher, depending on the requested amount.
What are the typical remedies granted to a successful plaintiff? The courts typically grant the following remedies to successful plaintiffs:
- temporary or permanent injunctions;
- compensation for damages (including moral damages); and
- seizure and/or destruction of infringing goods.
The courts can also include a clause threatening the losing party with a monetary penalty for each breach of the judgment. In addition, the courts often order publication of decisions in newspapers.
How are damages awards calculated? Are punitive damages available? Patent owners can request compensation and moral damages. In both cases the plaintiff must prove the infringer’s negligence. Compensation claims are calculated based on the following factors:
- actual loss;
- the defendant’s profits; and
- the licence analogy.
It is difficult to prove the exact amount of damage or enrichment, due to the fact that patent owners can rarely prove the exact number of products that have been distributed and the exact damage that has been caused in this respect. Where there is no possibility of finding sufficient evidence as far as the compensation claim in concerned, patent owners can request the infringer to provide information, including invoices or the number of products that have actually been distributed.
The amount of compensation also depends on the facts of the case. Regrettably, no data regarding the outcome of compensation actions in Greece exists.
Patent owners can also request moral damages, but the amount of compensation is difficult to estimate. Greek courts rarely adjudicate amounts exceeding €45,000 as moral damages.
How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this? In order for a petitioner to be granted a permanent injunction, it must prove the existence of serious infringement. The petitioner must also prove novelty and inventive step of the invention, if the defendant raises objections in this respect.
Timescale and costs How long does it take to obtain a decision at first instance and is it possible to expedite this process? Until recently, the Greek judicial system permitted enough space for defendants intentionally to cause significant delays to proceedings. To this end, Parliament has introduced significant amendments to the Civil Procedure Rules, which came into force on January 1 2016. The new rules stipulate strict timeframes for proceedings, with both parties obliged to file their respective written arguments and all evidence within 100 days of the action being filed (130 days where the defendant is not resident in Greece). Both parties must then file their rebuttal arguments within 15 days. Each party is entitled to present up to five sworn affidavits in support of its own arguments and up to three sworn affidavits to rebut the arguments of the other party. As a rule, the court will then hear the case without witnesses. If the court deems it absolutely necessary, it can summon one of the affiants to testify in court. Therefore, the hearing in a main infringement proceeding takes place approximately five months after the filing of the action and a decision will be issued after approximately six months. However, especially due to the backlog of pending cases, it is possible that decisions may be delayed in the future.
Moreover, in patent nullity actions, because patent judges have no technical background, the courts often order a court-appointed expert opinion, which can cause delays of at least 18 months. In light of the above, action against the infringer should be taken immediately on discovering infringement by filing a petition for preliminary injunction.
How much should a litigant plan to pay to take a case through to a first-instance decision? No accurate estimation can be made of the costs involved in taking a case through to a first-instance decision, because these depend on:
- the complexity of the case;
- the duration of the proceeding;
- potential involvement of experts; and
- possible translation costs.
However, compared to other EU countries, the related costs in Greece are considerably lower.
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