What are the most effective ways for a European patent holder whose rights cover your jurisdiction to enforce its rights in your jurisdiction?
The most effective way for a European patent holder to enforce its rights in Cyprus is to file a court application for a freezing order until its case is heard by the courts.
What level of expertise can a patent owner expect from the courts in your jurisdiction?
In December 1997 Cyprus entered the European Patent Organisation and became a member of the Patent Cooperation Treaty. On 1st April 1998 the new Cypriot Patent Law was enacted as Law 16(I)/1998 and amending laws. The new law revised the existing Patent Law to deal with current legal issues.
There are no specialised courts in Cyprus that deal with IP rights. The courts have only basic expertise and knowledge because very few patent cases come before the district courts or the Supreme Court. The majority of cases are settled at the time of an application for an interim order (injunction). However, some cases do proceed to full trial. The parties are expected to call experts in the specific area of the patent in question to explain to the judges the technical aspects of the patent.
How do your country’s courts deal with validity and infringement? Are they handled together or separately?
After the filing of an application by any interested party, the district courts have the right to invalidate the patent wholly or partially in the following circumstances only:
- The object of the invention does not fall under the definition of the term.
- The patent does not reveal the invention in a satisfactory manner, clearly and fully so that the invention can be executed by an expert in the field.
- The right to the patent did not belong to the person to which the patent was granted.
The court then has the right to request whatever it needs for the case from the patent owner. Every invalid patent, claims or part of the claims is considered to be invalid from the date of grant of the patent.
An infringement action is tried by the district court in the district where the cause of action arose. An appeal may be made to the Supreme Court in its appellate capacity. The court may also issue an injunction. Proceedings may not be instituted more than five years after the infringing act occurred.
Any interested person may, by instituting proceedings against a patent owner, ask the court to declare that the performance of a specific act does not constitute infringement of the patent. If the person making the request proves this assertion, the court shall grant a declaration of non-infringement.
To what extent is cross-examination of witnesses permitted during proceedings?
The cross-examination of witnesses is permitted during proceedings; however, one cannot mislead, misdirect or confuse the witnesses or ask them the same questions on the same issue. The questions asked at the cross-examination must comply with the details set down in the pleadings and must not extract additional material and information.
What role can and do expert witnesses play in proceedings?
Expert witnesses play a vital role in proceedings, since an expert witness can help the judge to reach a decision. If the expert witness is convincing, he or she can determine the judge’s decision. An expert witness must provide evidence of his or her expertise and cannot be questioned as he or she is there to help the judge and lawyers understand the specific field. An expert witness can help the judge to reach a decision beyond reasonable doubt.
Is pre-trial discovery permitted? If so, to what extent?
Pre-trial discovery is permitted. The party that wishes to carry out such discovery must obtain a court order in order to do so. Pre-trial discovery is granted when the court is satisfied that the discovery will help to shed light on the case. The pre-trial discovery must not take place merely to fish for witness statements or evidence from the other party.
Do the courts in your jurisdiction apply a doctrine of equivalents?
The doctrine of equivalents does not apply in the Cypriot courts. As a former British colony, Cyprus follows UK law on several matters. Neither the United Kingdom nor Cyprus has ever employed a “doctrine of equivalents” approach. As a signatory to the European Patent Convention, Cyprus follows the Protocol on the Interpretation of Article 69 of the Convention, which requires member states to strike a balance between interpreting patent claims in a strictly literal manner (with the description and drawings helping only to resolve any ambiguity) and regarding the claims as mere guidelines.
Are certain patent rights (eg, those relating to business methods, software and biotechnology) more difficult to enforce than others?
Business methods and software are not patentable under the Patent Law and, until the amendments introduced by Law 163(I)/2002 came into force, biotechnology was not patentable either. Biotechnology patent rights are much harder to enforce than other rights, since a forced permit is needed in order to be able to use a biotechnology patent. In addition, special requirements exist in relation to the description of biotechnology patents.
How far are courts bound by previous decisions made in cases that have covered similar issues?
As a former British colony, Cyprus inherited a rather unusual system of law, the essence of which has not fundamentally altered since its independence. The system is based on a series of codifications of the English common law in the form of Cypriot statutes, coupled with a general provision that in the absence of a statutory provision, the law of Cyprus is to be found in the common law.
This system is still used today. However, in respect of the questions under consideration, the common law does not apply because there are specific sections of the Patent Law. However, as the Cypriot courts have a long tradition of referring to UK law, in appropriate cases the Cypriot courts will look to English authorities for guidance. This is not to suggest that they will definitely apply these authorities or will consider themselves bound by those authorities. However, it is likely that they will look at these authorities and, if the jurisprudence is in line with common sense, they will follow and apply them.
As Cyprus has a common law system, the courts are bound by previous decisions issued by the UK courts in cases covering similar issues. The common law provides for the condition precedent, which states that the lower courts are bound by the previous case law of the higher courts and must follow those decisions.
Are there any restrictions on who parties can select to represent them in a dispute?
There are no restrictions as to who parties can select to represent them in a dispute, provided that those selected are qualified lawyers.
Are courts willing to consider the reasoning of courts in other jurisdictions that have dealt with similar cases?
The courts are willing to consider the reasoning of courts in other jurisdictions that have dealt with similar cases. The Cypriot courts follow the common law, based on UK case law, as well as EU directives and case law, since Cyprus joined the European Union in May 2004. In case of a conflict between case law and legislation, according to the Cypriot Constitution, EU law prevails over any national law.
How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?
It is not easy for defendants to postpone court proceedings since according to Cypriot law, certain civil procedures require the defendant to follow strict case procedures in order to reach the final stage. For example, if the defendant wishes to stall, there is always another action that the other party can take or request to make things more difficult for the defendant.
Is it possible to obtain preliminary injunctions? If so, under what circumstances can this be done?
It is possible to obtain preliminary injunctions. A preliminary injunction can be obtained only under certain circumstances – for example, when an ex parte application is filed and the filer proves to the court that it is extremely urgent that the injunction be granted as it has a serious case; or if serious damage would be caused without an injunction.
How much should a litigant plan to pay to take a case through to a decision at first instance?
The cost of taking a case through to a first instance decision depends on the scale chosen by the registrar. The scale sets down standard amounts based on court procedures and regulations, the legal requirements of each case and the judge’s requirements.
Is it possible for the successful party in a case to obtain costs from the losing party?
The losing party usually pays the successful party’s legal expenses. The successful party’s expenses are calculated by the registrar, taking into consideration the list of expenses filed by the successful party.
What are the typical remedies granted to a successful plaintiff by the courts?
The remedies granted by the courts depend on each case. A judge’s decision is based on previous case law and previous remedies. The decision will depend on the facts of the case and the damage caused to the plaintiff. Possible remedies include special damages, general damages, nominal damages, punitive damages, preliminary injunctions, final injunctions, permanent injunctions and court orders.
How are damages awards calculated? Is it possible to obtain punitive damages?
Damages awards are calculated based on previous case law and decisions in cases with identical or similar facts. The judge will look for previous cases with similar facts and then issue a decision based on the damages granted in that case. The judge will issue a very similar ruling in regard to the damages, as the calculation of damages depends on the damage caused and the damage proved. Nevertheless, the judge has discretionary power to issue a ruling that is different from those in previous cases and less than the damages suggested by the law. Punitive damages (ie, aggravated damages) do exist in Cyprus, but only for torts (ie, civil wrongs).
How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?
The courts are inconsistent in their granting of permanent injunctions to successful plaintiffs. The plaintiff obtains a preliminary injunction, which it issues to the defendant. The defendant then objects to the preliminary objection and the interim hearing takes place. If the plaintiff is successful, the preliminary injunction becomes permanent upon the ruling in the case; however, if the plaintiff loses, the preliminary injunction becomes void. If the trial finishes and the plaintiff loses while a preliminary injunction is still pending, that preliminary injunction is automatically cancelled.
How long does it take to obtain a decision at first instance, and is it possible to expedite this process?
There is no fixed timeframe for obtaining a decision at first instance – it depends on the number of cases pending and how long the case has been pending. The court usually give priority to cases that have been pending for three to four years. It takes a minimum of three to four years for a case to be tried and a ruling to be issued. Due to this priority system, it is not easy to expedite the process. However, if the matter is of great medical urgency (eg, serious illness, death) and this is proven to the court by expert testimony, the case may be treated more quickly.
Under what circumstances will the losing party in a first instance case be granted the right to appeal? How long does an appeal typically take?
The losing party in a first instance case always has the right to appeal. The appealing party has the right to file an
application with the court requesting it to postpone enforcement of the first instance decision. It takes approximately 18 months for an appeal decision to be issued.
Are parties obliged to undertake any type of mediation/arbitration prior to bringing a case before the courts? Is ADR a realistic alternative to litigation?
Parties are not obliged to undertake mediation or arbitration prior to bringing a case before the courts. ADR is a realistic alternative to litigation; however, an ADR decision must be approved by the court in order to be enforceable.
In broad terms, how pro-patentee are the courts in your jurisdiction?
There are no special procedures or techniques in relation to this; however, the courts are there to serve justice. Procedures are in place to deal with the invalidity of a patent both at the application stage and after a patent has been granted, and to provide remedies when a patent is infringed.
Has your jurisdiction signed up to the London Agreement on Translations? If not, how likely is it to do so?
Cyprus has not signed up for the London Agreement on Translations because the authorities consider it to be easier and quicker for a translation of the validation of a patent to be submitted in Greek, the official language of Cyprus. This is in line with existing procedures, as the staff of the Registrar of Intellectual Property Department cannot easily access and examine the patent if it is in a language other than Greek. However, it is possible that this may be amended in future.
Are there any other issues relating to the enforcement system in your country that you would like to raise?
Cyprus has no specialised courts dealing with IP rights and infringements. Cypriot industry contains only a small number of manufacturers and producers of inventions; therefore, infringement does not occur frequently. As a result, the Cypriot courts are not experienced in dealing with IP cases.
This article first appeared in Patents in Europe, a supplement to IAM magazine, published by The IP Media Group (www.iam-magazine.com).