1.1 What are the principal sources of law and regulation relating to patents and patent litigation? (Briefly describe the role of international, federal or state laws and relevance of court decisions, list and briefly describe relevant statutes and international treaties)
The main sources of national law in relation to patents and patent litigation in Greek law are:
An international treaty that may apply to patent litigation cases in Greece is the European Convention on Human Rights (ECHR) in so far as recent jurisprudence has recognised that intellectual property is recognised as a form of property protectable under Art 1 of the 1st Additional Protocol of the ECHR.
Relevant Community legislation that may apply directly to patent litigation cases is the Regulation on International Jurisdiction, on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Disputes (Regulation (EC) 44/2001 of the Council).
Besides, the Enforcement Directive (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights), which has not yet been transposed in Greece, may apply directly to patent litigation cases. More specifically, after the 29 April 2006 deadline for incorporating the Directive’s provisions, parties to any patent litigation dispute may request that Greek Courts apply directly the provisions of the Enforcement Directive in Greece. This gives a new perspective to the enforcement of patent rights in Greece as it is described in detail below in the relevant section.
Finally, in cases where the existing legislation on patents and patent litigation leaves notions to be vague or is open to further interpretation, like in the case of ‘bad faith’, ‘due reasonable care’, ‘abuse of right’ etc, the precedents set by the Greek courts in order of precedence, starting from the Supreme Court (Areios Pagos) and the Supreme Administrative Court (Council of the State), are taken into consideration and are establishing secondary sources of law.
1.2 What is the order of priority of the relevant sources, ie which take precedence in the event of a conflict?
As a general principle of Greek law, in the case of conflict the relative importance of the different sources of Greek law is as follows:
First is the Greek Constitution, then national laws and then other legislative acts (Presidential Decrees (PD) and Ministerial Decisions (MD)). But the latter must be issued following authorisation by a relevant law. Without such authorisation, the validity of a PD and a MD may be contested.
International treaties that have been ratified by national law supersede national laws, according to the Greek Constitution. The latter applies to the provisions of the EPC for instance, but also to other International treaties that may apply to the law of patents.
EU legislation supersedes national law and may be applied directly, without having to be ratified by national law.
One issue on which there is currently heated discussion is whether EU legislation supersedes the Greek Constitution; the courts have so far rejected this approach.
2.1 In which courts are patents enforced? Are they specialised patents courts? If not, what level of expertise can a patent holder expect from the courts?
Patents are enforced in civil courts. Law No 2943/2001, Art 9, which came into force on 1 January 2002, in its Chapter C, entitled ‘Sections for Community Trade marks’ set out that patent-related disputes are to be judged by the special sections that are competent to hear disputes on Community Trade marks. These courts are the District Courts of Athens and of Thessaloniki only, while cases are divided between the above two courts depending on the territoriality of the dispute. These provisions apply to law suits filed after 1 January 2002.
Under Art 10 para 3 of the above law, the above sections of the District Courts of Athens and of Thessaloniki are served by preference judges with specialisation or special experience in trade mark and patent matters in general.
As a result, as was the intention of the legislator, the courts deciding on patent law are acquiring proficiency through practice. However, the judges have a legal background only; as a general rule they have no technical knowledge.
2.2 To what extent are courts willing to consider, or are bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
Where a national court is competent in a patent litigation dispute, it is not bound by a decision handed down by a foreign court.
On the other hand, according to Art 323 of the Greek Civil Procedure Code, Greek courts are bound by foreign court decisions that constitute a precedent and are irrevocable according to the law of that foreign country, provided that certain prerequisites are met. The foreign court must have been competent under Greek law to hear the case, the defendant must not have been unjustly deprived of the right to be heard, and there must be no contrary Greek Court decision constituting a precedent under Greek law.
As a general rule, Greek courts are bound by decisions of other courts that may set a precedent according to the Civil Procedure Code, Arts 321 to 334. This is the case if the said prior decision was decided on the same dispute in substance (same historical and legal basis) between the same parties (or their successors).
Additionally, it is worth mentioning that the courts are willing to take into consideration foreign decisions without any such obligation, especially when dealing with an issue on invalidity. More particularly, the fact that a patent on the same invention has been granted in a jurisdiction where there is substantial examination of patent applications, like in the UK, the US or at the EPO, is often mentioned in decisions. The fact that foreign courts and patent offices have decided on the patentability of an invention following substantial examination is taken into account, because in Greece there is only formal patent examination. This means that when justifying a decision rejecting a claim of invalidity the courts are often seen to add: that in any case the same invention has been granted patent rights in other countries where there is thorough and substantial examination of patentability.
However, in the case of judging on an infringement, the courts have a tendency to seek independently the basis for such facts and provisions according to Greek Law, irrespective of whether infringement has already been found in some other country.
2.3 Do the courts deal with infringement and invalidity simultaneously? Or must invalidity actions be brought in separate proceedings? If so, before which court or government agency (eg the Patent Office)?
The Greek Patent Office conducts only a limited examination on patentability, namely on formalities only. The search report is also provided on an information basis and a negative search report does not lead to the rejection of patents. According to Art 16 of Law No 1733/1987 on ‘Technology transfer, inventions, and technological innovation’, the invalidity of patents is decided by the civil courts only. Invalidity actions may be brought either separately with a law suit or simultaneously with infringement actions, as a defence for the defendant in the form of an objection against the infringement law suit. The results of either route are the following:
When brought in separate proceedings, a successful invalidity action has the result that the patent is invalidated. So far as third parties are concerned, the rights on the patent may no longer be asserted towards any third party.
In an infringement action the plaintiff may also include the request for the invalidation of patent rights used by the defendant in infringement of the plaintiff’s patent rights, based on general civil procedure rules for the economy of the trial, provided that the parties to both disputes are the same and that the claims are based on the same facts. As a result, one decision is issued on all these matters, thus avoiding the substance of the patent rights being examined on different occasions by more than one court.
Further, the defendant in a patent infringement law suit may claim invalidity of the patent rights asserted/invoked in either of the following ways:
2.4 Who can represent parties before the courts handling patent litigation and/or the government agency dealing with patent validity issues?
Lawyers who are members of the respective bar associations of the competent court dealing with the patent litigation may represent the parties to patent litigation. A lawyer member from Athens may also represent parties in front of the Thessaloniki court and vice versa, provided that a local lawyer is also present and ‘legalises’ such presence.
2.5 What is the language of the proceedings? Is there a choice of language?
The language of the proceedings is Greek. There is no choice of language available in Greek courts.
2.6 To what extent are courts willing to grant cross-border or extraterritorial injunctions?
Courts tend to act within the national territory of the dispute. There is no precedent for the courts to grant injunctions with effect outside of Greece.
2.7 To what extent do courts recognise the blocking effect of ‘torpedo’ actions abroad?
Courts do not recognise the blocking effect of ‘torpedo’ actions abroad.
3.1 How is patent infringement assessed? To what extent does the doctrine of equivalents apply in an infringement action?
According to legal theory, in the case of patent infringement the judge may provide protection to the owner of the patent by two means.
Under the first method the judge tries to ascertain the object, the general principle of the patent and then tries to establish its field/limits of its protection. The judge then tries to establish if the technical rule of the infringer falls within the limits of the invention.
Under the second method the judge ascertains the intention and then tries to ascertain if the infringer uses similar means to that of the infringer. In this case, the judge does not try to establish the general principle of the invention.
The courts have taken differing positions on this issue, while they are rather strict in applying the doctrine of equivalents in infringement actions. However, if a party to a dispute presents a well-based claim of equivalent effect, the courts may well accept it.
An alleged infringer may claim that he/she was making use of the invention for nonprofessional or research purposes (Art 10, para 2 of Law 1733/1987).
Another claim could be that he/she was exploiting or had prepared to exploit the product of his/her intellect at the time of filing of the asserted patent (or its priority date) and should thus be allowed to continue to use the object of his/her intellect for the needs of one’s enterprise and for their own needs (Art 1, para 3 of Law 1733/1987).
In addition the alleged infringer may claim that the patent was null (Art 15, para 1) and therefore should be cancelled by the court.
3.3 To what extent can enforcement of a patent expose the patent holder to liability for an antitrust violation?
If the specific facts in that particular case form the basis of a violation of antitrust provisions, then it is possible that the patent holder is exposed to liability for an antitrust violation.
In accordance with Art 15 of Law No 1733/1987 on ‘Technology transfer, inventions, and technological innovation’ a patent will be declared null by a court if:
3.5 Can a court only partially invalidate a patent? Can it transform the patent into a utility model?
The court may partially invalidate a patent. This is the case if certain of the claims of the patent do not meet the law’s patentability standards (lacks novelty or inventive step).
Besides, a third party may bring a law suit against part of the invention only, and then the court may accordingly partially restrict the patent (art 15, para 3 of Law No 1733/1987).
Besides, the court may also transform a patent into a utility model if it is found that the patent was not capable of receiving patent protection.
It is not possible to amend voluntarily patent claims after the grant of a patent. Any amendments may be made only if decided by the court. Therefore, either the court decides to amend the claims in a decision heard with the parties in conflict, or the court decides to approve a compromise reached between the parties of the judicial dispute, while still in court.
3.7 Are there any grounds on which an otherwise valid patent can be deemed unenforceable, owing to misconduct by the patent holder, or for some other reason (eg expiry of time limit)?
Under Art 281 of the Greek Civil Code the exercise of a right may be denied if it is exercised in bad faith or contrary to common practices or is against the social and economic purpose of a right. This situation is also called an ‘abuse of right’.
This is the case when exercising the right to enforce the patent would represent an act clearly against the social end economic purpose of the right. Jurisprudence has established that this is particularly the case (but not only then) where a long time has lapsed where the patent owner was aware of the infringement and did not react. The time needed here is less than the time for the prescription of the right, but there have to be additional circumstances, eg that the infringer is lead to believe that the patent owner will not assert its rights and, thus, proceeds to investment because of this belief.
3.8 Can a patent holder bring a law suit claiming both patent infringement and unfair competition for the same set of facts?
Patents are mainly protected by the special provisions of Law 1733/1987. However, this does not exclude the protection based on the Unfair Competition Law No 146/1914.
Unfair competition provisions are applied in a complementary way. In particular, in order for a patent to be protected under those provisions, there must be a competitive incentive, danger of consumer confusion, as well as additional grounds that make the infringement contrary to good faith.
There are advantages in using an additional unfair competition basis on a patent infringement law suit:
4.1 Who can sue for patent infringement (patent holder, exclusive licensee, non-exclusive licensee, distributor)? Does a licensee need to be registered to sue?
The right to sue for patent infringement is reserved by law to the patent right holder (regardless of the way of acquisition of the right – either through inventorship or following assignment or due to filing).
The exclusive licensee may also sue provided however that the exclusive license is recorded at the Patent Office.
The mere distributor of the patented goods is not entitled to sue as he is devoid of legal rights to the patent. However, the distributor whose business is being harmed by the infringement may intervene in a law suit in favour of the plaintiff (patent rights holder) and, thus, become part of the proceedings.
4.2 Under what conditions, if any, can an alleged infringer bring a law suit to obtain a declaratory judgment on non-infringement?
It is indeed possible for any party to bring a law suit to obtain a declaratory judgment of non-infringement. This action must be turned against the patent rights holder, who must become a party to this law suit and may respond by presenting arguments in favour of the declaration of patent infringement. The decision of such a law suit would be enforceable between the parties to it and would constitute a precedent only between the parties and their successors in title.
4.3 Who can be sued for patent infringement? Can the company directors be sued personally? Under what conditions, if any, can someone be sued for inducing or contributing to patent infringement by someone else?
A defendant in a patent infringement law suit may be the legal entity or the natural person that performs the acts of infringement.
If employees or directors of a legal entity perform the infringement, it is considered that they act on behalf of the legal entity who is held responsible for such behaviour.
However, the directors of the infringing company can be sued personally as parties to the law suit only together with the legal entity that they represent. This is the case when the plaintiff asks the court to order their personal detention as a means to enforce the judgment that will be issued and thus avoid future infringement.
Parties may be added during the litigation in the following ways under the general provisions of the Civil Procedure Code:
First of all, a third party that may claim legal rights from the situation may intervene on its own initiative in the proceedings of a law suit which has already begun (Arts 79–85 of Civil Procedure Code). This is made in writing through the serving of a special writ in normal procedure law suits and within certain legal deadlines. On the other hand, in injunction actions the intervention may also be made orally on the day of the hearing.
Further, the defendant may invite to the trial a third party that may have responsibility, ie as importer, or manufacturer of the product sold by the defendant, in an infringement law suit (Arts 86–90 of the Civil Procedure Code). This is particularly done where the defendant would be able to ask for compensation from a third party in the case of losing the law suit. The third party is then bound directly by the results of the law suit and may participate in the dispute with full rights.
Additionally, anyone justifying legal rights may notify the existence of the dispute to a third party, according to Arts 91–92 of the Civil Procedure Code. The third party then has the right to participate in the proceedings. But where it does not participate it cannot evoke such non-participation as a basis for filing a recourse (third party opposition) against such a decision.
5.1 What options are open to a patent holder when seeking to enforce its rights in your country?
The owner of a patent may demand that infringers cease the infringement and desist from any future infringement. This right applies to both present and threatened infringement of its patent rights.
Where the patent owner can evidence intentional infringement of its patent rights, he/she may also ask for compensation. More particularly the patent owner (or the beneficiary of an exclusive license) has the following alternatives:
No criminal sanctions are available for patent infringement, according to Greek law.
It is possible to file a Request for Customs Intervention for the seizure of goods infringing patent rights as provided in Regulation (EC) 1383/2003, which has effect throughout the EU. In this case, translations of foreign language documents should be filed at Greek Customs, so as to inform the authorities of the actual contents of the Customs Intervention Request.
5.4 To what extent are alternative dispute resolution (ADR) methods (such as arbitration or mediation) available to resolve patent disputes? If arbitration is available to assess invalidity, will your Patent Office recognise and execute an arbitral award declaring a patent invalid?
Arbitration is a means to resolve private disputes between individuals which is provided for by the Greek Civil Procedure Code. In the case of a patent dispute between individuals, then it is possible to use this for resolving patent disputes.
So long as the parties voluntarily submit the question of invalidity of a patent to an arbitration panel according to the procedure described by law, there is no reason why the Patent Office does not recognise such a decision. This is particularly the case since the Patent Office is not responsible for conducting substantial examination of patents: this competence is reserved for the civil courts during requests for patent invalidations.
A law suit must be filed at the competent multi-membered District Court in the form of an introductory writ, which must contain clearly and precisely all the particular facts and elements that constitute the infringement and also the description of the violated patent right. Upon filing the law suit a hearing date will be set.
Before such hearing, the parties must try to settle the matter out of court and set a date for doing so. If this attempt is unsuccessful or if the defendant does not attend, then a written declaration must be drawn up and signed by the plaintiff’s lawyer. On the other hand, if a compromise is reached, this is presented to the court on the hearing date and the court certifies this compromise with a decision. In any case, the presentation of a document evidencing either development is a formal prerequisite for the court to enter the substance of the patent dispute.
A file with full legal arguments, evidence and affidavits (up to two for each party) must be filed by the involved parties 20 full days before the date of the hearing. Then the parties may within five days file counterclaims and respond to the other party’s arguments and evidence.
At the hearing, which takes place orally, each party may present a witness. Then the parties have eight working days within which they can comment in writing on the arguments raised by the witnesses during the oral hearing.
In civil courts the disputes are decided by judges only.
6.3 To what extent are documents, affidavits, witnesses and/or (court-appointed or private) experts used? Is it possible to cross-examine witnesses?
Documents, affidavits and witnesses are widely used in civil proceedings. Several forms, however, must be preserved. All the relevant documents must be duly translated and officially certified (or certified by the lawyer as to their conformity with the original) or must be submitted as originals. Affidavits must be taken in advance of the trial and notice about the affidavit (the name of the witness, his capacity, his residence, the address where the affidavit will be given, date, time) must be given to the other party, or his attorney appointed to receive documents, at least 48 hours before the hearing of the case. It is also possible to cross-examine witnesses.
Court experts may be appointed to comment on technical matters. Under current practice the court may appoint an expert in litigation involving chemical synthesis related and pharmaceutical patents. In patents not requiring specialist knowledge it is not customary for the court to appoint an expert.
Additionally, it is customary that parties appoint court experts and file their opinions together with their written arguments and evidence before the hearing, as mentioned above.
6.4 To what extent is pre-trial discovery permitted? If it is permitted, how is discovery conducted? If it is not permitted, what other, if any, mechanisms are available for obtaining evidence from an adverse party or from third parties?
Pre-trial discovery is not permitted by Greek law. An equivalent would be the possibility of the court ordering either of the parties to provide/show certain documents or disclose certain information to the other party.
However, this is made only through a special request of the other party, which would include the reasons and name as precisely as possible the documents needed.
This special request may be filed in emergency proceedings (injunction proceedings) and a decision is then issued. However, this does not allow the other party to inspect premises.
6.5 What level of proof is required for establishing infringement or invalidity?
Full proof of the infringement or of the invalidity is required. Only in the case of an injunction action may the court rely on the probability of the infringement or invalidity.
6.6 How long do patent infringement proceedings typically last? Is it possible to expedite this process?
Patent proceedings heard at first instance typically last two to five years, whereas proceedings heard at second instance (Court of Appeal) typically last 18–22 months. If there is a postponement during the proceedings at first instance the proceeding may last 15–18 months more. In the case of postponement in the second instance proceedings may be further delayed for six to nine more months.
Where a court expert is appointed, the proceedings may be further delayed for one more year.
On the other hand, using unfair competition provisions as the legal basis speeds the hearing dates, as described above.
6.7 What options, if any, are available to a defendant seeking to delay the proceedings? Under what conditions, if any, can proceedings be stayed? How can a plaintiff counter delaying tactics of defendant?
The defendant may ask for a postponement of the trial for medical reasons pertaining to either the defendant or its lawyer (medical documentation may be presented) or for not being able to provide an expert witness or because of the need to assemble the relevant evidence in his deposition. However, the courts are strict about granting even one postponement if the other party does not agree.
Proceedings may be stayed for the following reasons:
As soon as a law suit has been filed in a court in Greece and as long as the proceedings typically last, there can be no court hearing for the same issue between the same litigants in any other court in Greece (Code of Civil Procedure, Art 222, para 1). If during the hearing of a case, a law suit/intervention action is indeed filed, the hearing of the second law suit is stayed until the hearing of the first law suit takes place and a relevant final decision is issued (Code of Civil Procedure, Art 222, para 2).
Further, the proceedings to a trial may be stayed so as to wait for a decision to be issued on another matter that is considered a prerequisite issue that must be decided before the patent litigation in question (Code of Civil Procedure, Art 247). This is particularly so in the case of a patent infringement law suit that must stay until the issuance of a final decision on the invalidity of the patent right asserted filed beforehand.
Further, in order to delay the proceedings, the defendant may file a counter law suit claiming infringement by the plaintiff of the defendant’s own patent rights. From a judicial procedure point of view, it is possible to file a ‘counter law suit’ for infringement in a pending patent cancellation law suit in Greece. Such ‘counter law suit’ may be filed either with a separate legal document notified to the other party 30 days before the hearing date or with the legal arguments for the first law suit, which should be filed 30 days before the hearing date.
In order to speed up the proceedings despite the defendants delaying practices, a plaintiff must observe legal proceedings and deadlines and be prepared for any such tactics, like a ‘counter law suit’ so as not to be taken by surprise. Thus, the plaintiff will avoid requesting postponements on his own part which result in further delay.
7.1 What remedies are available against a patent infringer (final injunction, delivery up or destruction of infringing goods, publication of the decision, recall-order, monetary remedies, etc)?
The owner of a patent may in the case of present or threatened infringement demand that the said infringement cease, and that any infringement in the future be prohibited (Law 1733/1987, Art 17, para 1). In the case of an international infringement the owner of a patent that has suffered damage may demand restitution of the damage or the return of the benefits derived from the unfair exploitation of the patent. Alternatively, the patent owner may demand the payment of the amount equal to the value of the licence.
The patent owner may also ask from the court the publication of the decision in a newspaper, but only when the law suit has as its basis unfair competition law provisions.
The destruction of the infringing goods may also be ordered (Law 1733/1987, Art 17, para 5) or the delivery of the goods to the owner.
7.2 To the extent it is possible to obtain a final injunction against future infringement, is it effective against the infringer’s suppliers or consumers?
A final decision is effective against the infringer’s suppliers or customers only if the law suit is issued against them too. The decision affects only the parties to the dispute. Therefore, it is advisable to name as defendants in an infringement law suit all the infringer’s known suppliers, distributors and licensees, which by so acting participate in the infringement.
7.3 What monetary remedies are available against a patent infringer (reasonable royalty, lost profits, account of profits, or some other basis)? Are punitive damages available? If so, under what conditions?
The courts may grant only the monetary remedies provided for by law: reasonable royalty, lost profits, account of profits, moral damages (if one can calculate such from the patent infringement).
Punitive damages are available only if agreed in the form of a penal clause in contracts.
8.1 Is preliminary relief available? If so, what preliminary measures are available (eg preliminary injunction) and under what conditions?
It is possible to file a petition for an injunction, with or without a request for a preliminary injunction.
If a request for a preliminary injunction is made, a hearing for the latter will be set within 24–48 hrs and the other side will be invited. Therefore the applicant’s side should be ready to support such a petition in a fast oral discussion with the judge at the competent district court (single judge). Sometimes a witness is also examined, though this is not necessary. If a preliminary injunction is granted this is announced on the same day and it is valid until the day of the hearing, which by law should take place within 30 days.
If the preliminary injunction is not granted, then the hearing for the injunction may be set within two to three months. On the hearing date, each party has the right to examine one witness and the case is heard at length on its merits by one judge. Any kind of evidence may be filed for supporting the case, within three days of the hearing the latest, together with written arguments. Written affidavits are also acceptable if made before the hearing date. A decision can be expected within 3–12 weeks of such hearing.
Of course certain elements need to be demonstrated (urgency, upcoming damages, probability of infringement of legal rights).
With the injunction petition one may also request the other party to provide information of the sales made of the particular infringing items, so as to prepare the subsequent claim for compensation to be filed with the normal procedure law suit. If the other party does not voluntarily provide such data, the court may be asked to issue such an order to the defendant.
8.2 Is ex parte relief available where defendant is given no notice at all? If so, under what conditions?
This is not forbidden by law; it is indeed possible for a preliminary injunction. However, in recent practice the courts always require the defendant to be present or at least legally notified of such discussion.
8.3 Is plaintiff entitled to ask for an order that defendant’s premises are searched and a description of the infringing goods (and the accounting relating thereto) is made in order to establish proof of infringement (saisie-contrefaçon)? If not, what other mechanisms, if any, are available for seizing and preserving evidence for trial?
The plaintiff is entitled to ask the above in an injunction action. However, in practice the other party is notified of such a request at least a few hours beforehand and it is possible that evidence, documents etc are moved or hidden.
The only possibility for seizing and preserving evidence for trial without warning the defendant would be to ask the courts to enforce directly the relevant provisions of the Enforcement Directive (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights).
8.4 Can the defendant put the validity of a patent in issue in preliminary injunction proceedings?
The defendant may certainly put the validity of a patent at issue in preliminary injunction proceedings, as an objection to the injunction. If the court decides to accept such an objection, in injunction proceedings, the result would only be the rejection of the injunction action. A patent may not be invalidated following an objection during injunction proceedings.
As already mentioned above, if a request for a preliminary injunction is made, a hearing for the latter will be set within 24–48 hrs and the other side will be invited to attend.
Therefore the applicant should be ready to support such a petition in a fast oral discussion with the judge at the competent district court (single judge). Sometimes a witness is also examined, though this is not necessary. If a preliminary injunction is granted this is announced on the same day and it is valid until the day of the hearing, which by law should take place within 30 days. If the preliminary injunction is not granted, then the hearing for the injunction may be set within six to seven weeks.
8.6 To what extent are documents, affidavits, witnesses, and/or (court-appointed or private) experts used in preliminary injunction proceedings?
Affidavits, documents, witnesses and private experts are all used in injunction proceedings, as described above, in order to substantiate the rights that must be protected.
8.7 What level of proof is required for establishing infringement or invalidity in preliminary injunction proceedings?
The law (Civil Procedure Code) requires the judge to find it probable that there is infringement. However, in practice one needs to present a case fully evidenced in order to have high hopes of success in an injunction action.
Injunction proceedings may be concluded within one day, the same day of filing of the request. However in practice it is often requested that the defendant is notified of such discussion one day in advance. The decision is usually issued right after the discussion, but it may also be issued some time afterwards within the same day or even the next day.
8.9 Where a preliminary injunction is granted, is it necessary to start main proceedings to confirm the preliminary injunction?
Where a preliminary injunction is granted, this lasts until the day of the hearing of the injunction action. After the issuance of the injunction action, following amendment of civil procedure provisions, since September 2005 it has been necessary to start main proceedings (a so-called normal procedure law suit) within 30 days of the publication of the injunction decision.
9.1 What avenues of appeal are available for a defeated party in main proceedings or preliminary injunction proceedings? Under what conditions?
The defeated party in main proceedings may file an appeal at the competent Court of Appeal requesting the annulment of the decision issued. The deadline for filing an appeal is 30 days from the day of formal notification of the first instance decision. Where the first instance decision is not notified formally, then the absolute deadline for filing an appeal is three years starting from the publication of the first instance decision.
An appeal may be filed if in the opinion of either party the first instance court has wrongly interpreted the legal provisions applicable or/and has not taken good consideration of the evidence.
The defeated party in an injunction action has limited possibilities to reverse the decision. This may be done strictly for the following reasons:
The avenues available in these cases would be to file a petition for the reversal of the injunction decision, based on either of the grounds mentioned above.
9.2 How long do appeal proceedings typically last?
Appeal proceedings as such last as follows:
In a normal procedure law suit, the appeal is heard within six to nine months of its filing. A postponement of this hearing is possible if there is good reason. The postponement will be for another four to eight months average.
The hearing lasts for one day and there is no witness examination. The written documents (legal arguments, court experts’ opinion and evidence) must be filed the day before the hearing. Then, the parties have three working days after the day of the hearing to provide counterarguments, responses to the other party’s arguments and comments on the other party’s evidence.
The Court of Appeal may decide to hear witnesses, if it considers it necessary, and this may be done following the issuance of an interim decision. Such a decision is at the discretion of the Court of Appeal so as to clarify certain issues or to hear the parties to the dispute in person and may well delay the proceedings further.
A decision at appeal should be issued within approximately six to eight months of the hearing, according to current practices.
On the other hand, in injunction proceedings the request to reverse a decision issued is handled like a new petition for an injunction, with the same delays and procedure as mentioned above.
The only difference is that it may be judged either by a single judge court or by a multi-judge court, depending on the legal circumstances.
10 LITIGATION COSTS
10.1 What level of cost should one expect to incur to take a case through to a first instance decision, preliminary injunction proceedings and/or appeal proceedings?
The costs to be incurred depend on the complexity of the case and of the nature of the infringed patent rights – should they require extensive elaboration, court and private experts, multiple hearings etc.
10.2 Are costs recoverable from the losing party?
The losing party is ordered by the court to pay the litigation costs. However the litigation costs awarded by the courts are always less than the actual litigation costs. Additionally, the court has the right to declare that each party is to bear its own costs, when the outcome of the dispute is quite uncertain.
Only where the object of the dispute is monetary (ie compensation) may either party request the court to award damages according to a so-called ‘table’ which is drafted in the legal arguments filed in view of the court hearing. Then the legal costs awarded may be calculated on the value of the dispute, as 2% + 1% for the plaintiff and 2% for the defendant, where the request for compensation is rejected.
11 FORTHCOMING LEGISLATION
11.1 What are the important developing and emerging trends in your country’s patent law?
There does not seem to be any important developments in this area, other than those reported above.
11.2 To the extent it relates to patent enforcement, please outline any major patent legislation in the pipeline.
Major improvements can be expected if the courts start to implement the EU Enforcement Directive (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights), or when specific provisions are incorporated into Greek law so as to implement these provisions.
The implementation of the EU Enforcement Directive in Greece in respect of patent litigation will greatly improve the procedures and measures available for patent right owners during injunctions and for assembling evidence in order to request compensation.
Of course, we are at a very early stage and cannot preview the actual results of such implementation, as only time will show the full extent of these changes in practice. Therefore, this remains an issue to be examined in two years’ time, in future editions of this work.
12.1 Please identify any useful works of reference relating to patent law and patent litigation in your country including useful websites.
Classic references for patent law and litigation in Greece are the following:
Thanasis Liakopoulos Intellectual Property Part I (3rd edn, Athens, 1993, P Sakoula Bros)
Thanasis Liakopoulos Intellectual Property Part II (3rd edn, Athens, 1993, P Sakoula Bros)
Konstantinos G Simiti The Right on a Patent (1967, Ant N Sakoula)
Konstantinos Lymperopoulos Invalidation of Patents (1987, Ant N Sakoula)
