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Enforcement through the courts
What level of expertise can a patent owner expect from the courts?
There are no specialist patent tribunals or judges in Gulf Cooperation Council member states, other than in Saudi Arabia.
Are cases decided by one judge, a panel of judges or a jury?
Civil trials in Gulf Cooperation Council member states are conducted on the basis of written memoranda and documentary evidence. A single judge hears most of the cases. In rare circumstances the court may sit as a panel, based on the merits of the case and the amount of damages claimed.
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 the Gulf Cooperation Council.
What role can and do expert witnesses play in proceedings?
Written evidence provided by experts can be presented to the court. Courts may also appoint their own experts.
Does your jurisdiction apply a doctrine of equivalents and, if so, how?
There is no jurisprudence relating to non-literal equivalents. Courts are expected to take a very literal and simplistic view in determining infringement until they gain experience.
Is it possible to obtain preliminary injunctions? If so, under what circumstances?
Courts may use conservatory measures orders as interim orders. An asset attachment order to freeze assets or funds may be available in some cases.
How are issues around infringement and validity treated in your jurisdiction?
The Gulf Cooperation Council Patent Law provides no defined grounds to invalidate a patent; therefore, in addition to lack of novelty or inventive step claims, it may be possible to argue for the invalidation of a patent based on other grounds, such as misappropriation.
Will courts consider decisions in cases involving similar issues from other jurisdictions?
The national courts of Gulf Cooperation Council member states may consider decisions involving similar issues from other jurisdictions. The Riyadh Convention provides that each contracting party must recognise court judgments from other contracting parties in civil cases which are final and binding. However, an enforcement order by the national courts is required.
Damages and remedies
Can the successful party obtain costs from the losing party?
Cost awards are generally unavailable in the Gulf Cooperation Council. The losing party will normally have to pay court and expert fees.
What are the typical remedies granted to a successful plaintiff?
The typical remedies available are damages or an account of profits.
Courts may order the cessation of “the effects of an activity contravening the law”, which should effectively mean a permanent injunction. However, some commentators believe this applies only to the infringement at issue, and not to future acts of infringement.
How are damages awards calculated? Are punitive damages available?
Damages and accounts of profits are estimated based on evidence placed before the court. The court may ask an expert to assist with calculations. As there is no discovery process, it may be difficult to provide evidence to establish damages or an account of profits.
Damages awards tend to be small (generally in IP cases, as there is little jurisprudence for patent litigation), as courts do not have enough experience to consider the issues in depth. Punitive damages are not available in the Gulf Cooperation Council.
How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?
Courts may order the cessation of “the effects of an activity contravening the law”, which should effectively mean a permanent injunction. However, some commentators believe this applies only to the infringement at issue, and not to future acts of infringement. There is little precedent with respect to patent infringement disputes in the Gulf Cooperation Council on which uniform conclusions regarding court practice can be drawn.
Timescale and costs
How long does it take to obtain a decision at first instance and is it possible to expedite this process?
First-instance enforcement proceedings generally take 12 to 18 months to complete, but can be longer, particularly if the defendant seeks adjournments, an expert delays the submission of his or her report or the parties seek to appoint further experts.
Judgments are rendered orally. Written judgments are subsequently available. However, lower court judgments are not published and are available only to the parties to the case. Only Court of Cassation decisions are published.
How much should a litigant plan to pay to take a case through to a first-instance decision?
Proceeding costs will vary greatly, depending on a number of factors, including:
- whether a foreign or local firm is appointed as representation;
- the complexity of the case;
- the number of experts required; and
- the amount of evidence that will need to be translated into Arabic, notarised and ratified.
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