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The Enforcement of Patents

Edited by Reto Hilty, Kung-Chung Liu


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Obstructions to patent enforcement exist all over the world. Increasingly, unauthorized players use protected inventions to conduct their own commercial businesses. The question must be asked whether available law provides for sufficient disincentives against the infringement of granted rights. If a patent right cannot be properly enforced, it is of little value to its owner; moreover, under-enforcement ultimately leads to tension within the entire system of protection, generating harmful repercussions and sooner or later producing dysfunctional effects. Yet protection that is too wide risks hindering further innovation.

Carefully balancing the scope of legal protection with the impact of enforcement measures is essential. The more the legal focus has moved to questions of enforcement, the more the imbalance within the system of legal protection has been revealed. In 2010 an international conference was organized around these issues in Taipei by the Max Planck Institute for Intellectual Property and Competition Law and the Academia Sinica, Taipei, with the support of the IP Academy Singapore, the Institute of Law for Science and Technology of National Tsing Hua University, and the Graduate Institute of Intellectual Property, National Chengchi University. The aims were to provide doctrinal clarification of some common misconceptions and myths surrounding patent enforcement, and to discuss the “more economic approach,” which is gaining growing acceptance across many countries.

This publication, derived from that conference, carries through those objectives, and also serves as a handbook for patent enforcement in major Asian jurisdictions, where there is huge potential for economic growth and patent cooperation. In addition it looks into the experiences of the centralized system of patent enforcement in the United States, and into the European Union’s efforts to establish a truly international patent right governed by a unitary European patent court. Scholars, judges and practitioners were also invited to comment on the conference reports, greatly enriching the book.

Among the many matters treated in depth are the following:

  • dysfunctional use of the patent system, such as misappropriation prior to grant, abuse of granted right;
  • the interaction between patent enforcement and competition law;
  • safeguarding the investor’s possibilities to obtain a return on his investments during a limited period of time;
  • the need to challenge the industries’ contentions and the assertions of lobbying groups;
  • widespread uncertainty about the impact of patent infringements;
  • and absence of recognized standards on how to measure the losses of the industries concerned.

The authors emphasize that issues of enforcement cannot be addressed in an isolated manner. The patent system, they show, can be improved by first understanding the unique features of certain jurisdictions that can spur reflections and mutual learning. Patent lawyers, regulators, and policymakers everywhere stand to benefit immeasurably from this richly significant book.

Last Updated 12/27/2011
Update Frequency As Needed
Product Line Kluwer Law International
ISBN 9789041135278
SKU 10059041-0001
Table of Contents

Introduction Reto M. Hilty & Kung-Chung Liu

Part I Doctrinal Clarification

Chapter 1 Keynote Reto M. Hilty

Chapter 2 More Economic Approach to IPR and Competition Law: A Cross-Jurisdiction Study on Patent Pools Kung-Chung Liu

Comment: Reflections on a Second Thought Richard Li-Dar Wang

Chapter 3 The Economics of Patent Enforcement and Its Reception in Asia Andrea Wechsler

Comment Steven S. Kan

Part II Patent Enforcement in East Asian Jurisdictions with Civil Law Background

Chapter 4 Mainland China Xiang Yu & Di Lu

Comment Heinz Goddar

Chapter 5 Japan Masabumi Suzuki & Yoshiyuki Tamura

Comment Klaus Hinkelmann

Chapter 6 Korea Byungil Kim

Comment: When Public Law Comes Across Private Law Sung-Mei Hsiung

Chapter 7 Taiwan Ming-Yan Shieh & Su-Hua Lee

Comment Rupprecht Podszun

Chapter 8 Patent Enforcement in Indonesia Christoph Antons

Comment Min-Chiuan Wang

Chapter 9 Philippines Alex Ferdinand S. Fider

Comment Chung-Lun Shen

Chapter 10 Thailand Nandana Indananda

Comment: A Closer Look at the TRIPS Compatibility Issue of Patent Enforcement in Thailand Tsu-Sung Hsieh

Part III Patent Enforcement in East Asian Jurisdictions with Common Law Background

Chapter 11 Hong Kong Alice Lee

Annex Comment: Towards More Cost-Effective and Efficient Patent Enforcement in Hong Kong Kuo-Lien Hsieh

Chapter 12 Malaysia Kherk Ying Chew

Comment Chung-Hsin Hsu

Chapter 13 Singapore Ng-Loy Wee Loon

Comment Chung-Hsin Hsu

Chapter 14 India Mrinalini Kochupillai

Comment Chung-Lun Shen

Part IV American and European Issues

Chapter 15 Centralized Patent Enforcement: Experiences and Problems with the U.S. System Matthias Leistner & Manuel Kleinemenke

Comment Ming-Jye Huang

Chapter 16 The Present and Future of European Patent Jurisdiction Thomas Jaeger

Comment Wei-Lin Wang