At a glance: patent enforcement proceedings in Greece

Patent enforcement proceedings

What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?

The first and most swift action against an infringer is to request a temporary restraining order. This will be granted if the petitioner proves the existence of a prima facie serious infringement as a matter of exceptional urgency. Such a request is filed concurrently with a petition for injunction and, if granted, usually remains effective until the hearing of the injunction.

A petition for injunction is granted if the element of urgency is prevalent in the circumstances of a particular case. The patent owner may ask for the cessation of the infringing act and the removal of the products from the market. The patent owner is also entitled to take measures to preserve evidence and has the right to information.

The next step is pursuing a main infringement action in which the patent owner may also ask for compensation and moral damages.

Forum selection is important to ensure that court proceedings take place before a court with sufficient expertise in patent law. Patent owners may wish to initiate court proceedings before specialist courts instead of the local courts. According to legal theory and case law, the competence of the specialist courts in Athens and Thessaloniki is reserved for main patent actions (ie, main infringement actions and nullity actions against a patent) and is not for temporary restraining orders or injunctions. The competent courts for preliminary proceedings are the local courts. However, the local courts’ limited expertise in patent law may negatively affect the protection of patent owners’ rights; therefore, patent owners generally try to file preliminary proceedings before the specialist courts in Athens or Thessaloniki.

What is the format of a patent infringement trial?

In accordance with the Code of Civil Procedure, strict time frames for proceedings apply, where both parties are obliged to submit their arguments in writing along with all relevant evidential material within 100 days of the filing of the main action. This time frame applies to Greek nationals and is extended to 130 days for foreign nationals.

Both parties must then file their rebuttal arguments within 15 days. Upon expiry of this term, the case file is considered complete. Within 15 days from this point, a judge-rapporteur must be appointed, and within 30 days the hearing is scheduled.

Each party has the right to submit a maximum of five sworn affidavits in support of its own arguments and a maximum of three sworn affidavits to rebut the adverse party’s arguments. As a rule, the court, which in main proceedings consists of three judges, will then hear the case without witnesses; however, if the court deems it absolutely necessary, it has the option of summoning one of the affiants to testify before the court. In such a case, cross-examination of witnesses is permitted.

Each party’s witness is expected to testify on all facts of the case. Each party’s counsel may cross-examine the other party’s witness. The court may also address questions to the witnesses. Expert witnesses may play a key role in complex patent cases, especially owing to the fact that Greek judges have only a legal but not a technical background.

The hearing in main infringement proceedings takes place approximately five months after the filing of the action, and a decision may be expected after approximately six months.

What are the burdens of proof for establishing infringement, invalidity and unenforceability of a patent?

For establishing infringement, the plaintiff must prove that the patent upon which its action is based is valid, as well as the way in which the defendant is infringing the patent. In invalidity cases, the plaintiff must prove the grounds of invalidity of the contested patent.

If a party claims unenforceability of a patent, that party must prove that:

• the lawsuit for infringement or for compensation has not been filed in a timely manner;
• the acquiescence of the plaintiff created the impression to the defendant that it would not bring a lawsuit against the same;
• the defendant’s use had been made for non-professional or for experimental purposes (and, in the case of pharmaceuticals, possibly that the Bolar provision applies); or
• the plaintiff’s patent was null.

Who may sue for patent infringement? Under what conditions can an accused infringer bring a lawsuit to obtain a judicial ruling or declaration on the accusation?

Those who have standing to sue are the patent owner, the exclusive licensee, whoever has a right to the invention and the owner of a pending patent application. In the case of an owner of a pending patent application, the court may order the postponement of the hearing until the grant of the patent.

According to the leading opinion, for the exclusive licensee to have the right to bring an action independently, the licence must be recorded at the Greek Patent Office. An accused infringer may request a declaratory judgment recognising that he or she is not infringing. Such a judgment is enforceable between the parties only.

To what extent can someone be liable for inducing or contributing to patent infringement? Can multiple parties be jointly liable for infringement if each practises only some of the elements of a patent claim, but together they practise all the elements?

Greek patent law does not have any specific provisions concerning inducement and contributory infringement; however, general legal provisions may be applicable depending on the case.

Apart from the actual infringer, the plaintiff may also sue any intermediaries, the services of whom are used by a third party to perform infringement, and directors or employees of a legal entity provided that they committed the infringing acts and that they acted for the infringing entity, but only if their personal actions constitute a tort. In the case of multiparty infringement, each party will be liable to the extent of its own infringing actions.

Can multiple parties be joined as defendants in the same lawsuit? If so, what are the requirements? Must all the defendants be accused of infringing all the same patents?

Multiple parties may be joined as defendants in the same lawsuit, provided that each of them contributes to the infringement in some way. Not all the defendants must be accused of infringing all the same patents, but there must be a connection on the basis of which the court may allow multiple defendants.

To what extent can activities that take place outside the jurisdiction support a charge of patent infringement?

Infringement must be committed on Greek territory since, as a rule, the principle of territoriality applies.

To what extent can ‘equivalents’ of the claimed subject matter be shown to infringe?

The Greek legal system accepts the doctrine of equivalents, which applies in cases where some of the technical characteristics of the invention are identical to those of the infringing embodiment, and some characteristics of the latter can be considered to be imitations or variations of the patented invention.

An infringing means, which as a rule consists of copying a technical characteristic of the patented invention, is considered to be equivalent if it is obvious to the average technical expert that when using this means, the result would be substantially the same as that of the technical characteristics of the claims of the invention.

What mechanisms are available for obtaining evidence from an opponent, from third parties or from outside the country for proving infringement, damages or invalidity?

Greek law does not provide for pretrial discovery; however, the patent owner has the right to preserve evidence and request that the defendant provide information such as invoices or details on the amount of products that have been distributed, within the framework of a trial.

What is the typical timetable for a patent infringement lawsuit in the trial and appellate courts?

In main infringement action proceedings, the time of the hearing is scheduled specifically, and the parties may expect the issuance of the court decision within six to eight months from the hearing. The average duration of appeal proceedings is 18 months; however, proceedings may last longer in certain circumstances.

What is the typical range of costs of a patent infringement lawsuit before trial, during trial and for an appeal? Are contingency fees permitted?

The costs involved in taking a case through to a first-instance decision are difficult to estimate, as they depend on the complexity of the case, the duration of the proceedings, potential mediation costs, potential involvement of technical experts and possible translation costs.

Litigation costs in Greece are considerably lower than those in other EU member states. Nevertheless, the costs of preliminary proceedings and main patent proceedings can be roughly estimated to be between €14,000 and €30,000, but higher fees have to be expected in complicated cases where several technical experts must be involved and close cooperation between client and counsel is necessary for an extended time.

What avenues of appeal are available following an adverse decision in a patent infringement lawsuit? Is new evidence allowed at the appellate stage?

Only decisions in main infringement action proceedings, and not preliminary injunction decisions, may be subject to appeal. All final decisions of the first-instance courts are open to appeal within 30 days of notification to the losing party in the case of Greek nationals and within 60 days of notification in the case of foreign nationals. If no official notification takes place, the decision may be appealed within two years of its publication.

The losing party may contest all aspects of the judgment in connection with legal issues or incorrect findings regarding the facts of the case. A second-instance decision may be appealed before the Supreme Court within 30 days of notification to the losing party in the case of Greek nationals and within 60 days of notification in the case of foreign nationals. As in the case of first-instance decisions, in the absence of official notification, the decision may be appealed within two years of its publication.

Submission of new evidence at the appellate stage is permitted only if such evidence had not been available at the first-instance trial.

To what extent can enforcement of a patent expose the patent owner to liability for a competition violation, unfair competition or a business-related tort?

Infringers may allege in their defence, in particular within the context of preliminary injunction proceedings, that the patent owner is acting in breach of the rules on unfair competition. The courts will assess such claims on a case-by-case basis.

To what extent are alternative dispute resolution techniques available to resolve patent disputes?

Under the Code of Civil Procedure, litigants in infringement cases have the option of seeking an out-of-court settlement. Mediation and arbitration are also available means for resolving IP rights disputes. Rules on arbitration are provided by article 867 et seq of the Code of Civil Procedure.

Neither mediation nor arbitration have been sufficiently tested in Greece in respect of patent disputes. Law 4512/2018 has initiated the compulsory use of mediation in legal disputes arising from patent, trademark and industrial design infringements. It introduced a compulsory initial mediation session before the hearing of the case. The session, along with proof of the lawyer’s compliance with the obligation to inform the client in writing about the option of mediation, are now a prerequisite for the admissibility of a lawsuit.

Law stated date

Give the date on which the information above is accurate.

10 February 2021.