Greece: Patent Litigation Comparative Guide

1 Legal framework

1.1 Which laws and regulations govern patent litigation in your jurisdiction?

• Law 1733/87 on Technology Transfer, Inventions and Technological Innovation;
• The Code of Civil Procedure, as currently in force;
• The EU Supplementary Protection Certificate Regulations (469/2009 and 1610/96); and
• The Brussels I Regulation (1215/2012) and the Brussels II Regulation (2201/2003).

1.2 Which bilateral and multilateral agreements with relevance to patent litigation have effect in your jurisdiction?

• The European Patent Convention;
• The Agreement on Trade-Related Aspects of Intellectual Property Rights;
• The Patent Cooperation Treaty;
• The Paris Convention; and
• The Patent Law Treaty.

1.3 Which courts and/or agencies are responsible for interpreting and enforcing the patent laws? What is the framework for doing so?

The civil courts are responsible for interpreting and enforcing the patent laws. They do so in the course of preliminary injunction applications as well as in main proceedings on infringement and validity.

2 Forum

2.1 In what forum(s) is patent litigation heard in your jurisdiction? Are patent infringement and validity decided in the same forum or separate forums?

All patent infringement actions must be brought before the IP-specialised chambers of the multi-member court of first instance in either Athens or Thessaloniki. The same applies for nullity suits. If invalidity is raised as an objection or counterclaim to an infringement action, this will be heard together. If brought separately, it will be heard separately; but the court may order that the infringement proceedings be stayed until a decision on validity has been issued.

2.2 Who hears and decides patent disputes (eg, a judge, a panel and/or a jury)?

Preliminary injunction applications are heard before one judge. Main actions (infringement or nullity) are heard before a panel of three judges. The judges have no technical expertise.

2.3 Are there any opportunities for forum shopping in your jurisdiction? If so, where and how do those opportunities exist?

An action is brought before the court in whose district the defendant is based or the infringing activity takes place. Nullity suits against a patent owned by a foreign company must be brought before the Multi-member First-Instance Court of Athens.

3 Parties

3.1 Who has standing to file suit for patent infringement? What requirements and restrictions apply in this regard?

The parties that have standing to file suit for patent infringement are:

• the patent holder;
• the licensee; and
• professional defence bodies, which are regularly recognised as having a right to represent the holders of IP rights.

In the case of licensees, the licence must be recorded at the patent office. An exclusive licensee has the same rights to file suit as the patent holder; whereas a non-exclusive licensee must be specifically authorised by the patent holder to file suit.

Declarations of non-infringement can be filed by any party with a legitimate interest; while nullity suits can be filed by anyone without the need to demonstrate a legitimate interest.

3.2 Can a patent infringement suit be brought against a defendant who is a foreign entity with only a residence or place of business outside the jurisdiction?

Yes, provided that the infringing activity takes place in Greece.

3.3 Can a single infringement action be brought against multiple defendants? What requirements and restrictions apply in this regard?

A single infringement action can be brought against multiple defendants if they have caused a harm in common. In such case, each is liable for the whole harm. The same applies if they have acted concurrently or successively and it is not possible to ascertain whose acts caused the harm.

3.4 Can a third party seek a declaration of non-infringement or invalidity in your jurisdiction? If so, how?

A declaration of non-infringement or invalidity is available to any third party with a legitimate interest. These are filed following the procedure for main proceedings. The patent holder must be named as defendant.

4 Patent infringement

4.1 What constitutes patent infringement in your jurisdiction?

Any act of productive exploitation of the invention that is not authorised by the patent holder. This includes:

• producing, offering or placing on the market, or using and holding for such purpose, the products that are protected by the patent;
• applying, offering or placing on the market a patented method; and
• producing, offering or placing on the market, or using and possessing for such purpose, a product whose production is a result of a patented method.

4.2 How is infringement determined?

The court will check whether the features of the alleged infringing item are covered by the claims of the patent. As a general rule, the claims should be interpreted purposively rather than literally.

4.3 Does your jurisdiction apply the doctrine of equivalents?

While there is no express provision in the law on the doctrine of equivalents, this is generally applied in practice by the courts.

4.4 Is wilful infringement recognised? If so, what is the applicable standard?

If the infringer infringed through malice or gross negligence, it will be liable for damages.

5 Bringing a claim

5.1 What measures can a patent holder take to enforce its rights in your jurisdiction? Are interim measures available before receiving a ruling on the merits?

A patent holder may file:

• a main infringement action seeking an injunction;
• a preliminary injunction application; and
• a request for the grant of a temporary restraining order, which will remain in place until the preliminary injunction application is heard.

5.2 What is the limitation period for patent infringement in your jurisdiction?

A claim for patent infringement must be brought:

• within five years of the date on which the patent holder became aware of the infringement, or of the damage and the infringer's identity; and
• in any case, within 20 years of the date of infringement.

5.3 Must the alleged infringer be notified in advance before a claim is brought?

No.

5.4 What are the procedural and substantive requirements for bringing a claim for patent infringement? How much detail must be presented in the complaint?

Infringement proceedings are commenced by filing the writ of the lawsuit with the court secretariat of the court that is competent to hear the case. This writ must:

• be written in Greek;
• clearly identify:
• • the names, addresses and value added tax numbers of the respective parties; and
  • the facts of the case that provide the basis for the lawsuit; and
• justify:
• • the competence of the court; and
  • the remedies requested, including the value of the dispute, if damages are sought.

Any documents supporting the lawsuit are not submitted at the time of filing but are submitted later at the time of submitting the pleadings and evidence.

Within 30 days of filing of the lawsuit, a copy of the legal writ must be served by the claimant on the defendant. This term is extended to 60 days where the defendant is based abroad. Service is effected by a court bailiff personally on the defendant or its legal representative.

5.5 Are interim remedies available in patent litigation in your jurisdiction? If so, how are they obtained and what form do they take?

Interim remedies are available in the form of a preliminary injunction, which is usually granted in inter partes proceedings, in which the patent holder must establish:

• prima facie infringement; and
• a need to obtain interim protection in order to avoid harm that is irreparable or difficult to reverse.

A temporary restraining order, if granted, will be valid until the hearing of the preliminary injunction application.

5.6 Under what circumstances must security for costs and/or damages incurred by the other party be provided?

The court has the power to order measures on condition that the applicant provides security (bond), as set by the court. However, this is seldom applied in practice.

6 Disclosure and privilege

6.1 What rules on disclosure apply in your jurisdiction? Do any exceptions apply?

There is no formal disclosure process or detailed rules on disclosure. As a general rule, the claimant should submit:

• all documents referred to in its statement of claim; and
• all documents that support/prove its arguments.

All parties are also under an obligation to submit documents that may provide useful evidence.

6.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

The provisions of Article 6 of the IP Enforcement Directive have been incorporated into the Patent Law. Accordingly, it is possible for a party to request specific evidence from the other party if:

• it can present reasonably available evidence sufficient to support its claims of infringement or imminent infringement; and
• in substantiating those claims, it can point to evidence in the control of the defendant.

6.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

The provisions of the EU Trade Secret Directive (2016/943) have been implemented into the Patent Law, allowing the court to take measures to preserve the confidentiality of trade secrets presented in the course of legal proceedings.

Communications between a client and its lawyer are covered by legal professional privilege and may not be disclosed to the other party or the court in litigation.

7 Evidence

7.1 What procedure(s) exist for collecting and presenting evidence in patent infringement litigation?

The provisions of Article 8 of the EU IP Enforcement Directive apply. If a patent holder provides reasonable evidence of infringement, it may request information on the origin and distribution networks of allegedly infringing goods or services.

7.2 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

Article 339 of the Code of Civil Procedure provides for the use of evidence in the form of "confession, autopsy, expertise, documents, examination of witnesses, witnesses, court evidence and affidavits". In proceedings on the merits, each party may file:

• up to five affidavits with its brief; and
• up to three affidavits with its rebuttal brief, in reply to the other party's allegations.

Parties may also file expert reports without limit. Usually, no witnesses are examined at trial, but the court may allow exceptions where necessary and require witnesses to testify or be cross-examined.

7.3 What are the applicable standards of proof?

According to the Code of Civil Procedure, the court must be satisfied about a party's case with certainty. In preliminary injunction proceedings, the corresponding standard is probability. The court is free to judge the evidence and conscientiously decide whether the allegations are true (except as expressly provided by law). Each party must prove the facts necessary to support its claim or objection.

7.4 On whom does the burden of proof rest?

The burden of proving infringement rests with the claimant. However, if the patent enforced is a process patent, the law provides for a reversal of the burden of proof. In such cases, the defendant will bear the burden of proving that its product is not infringing.

8 Claim construction

8.1 Is there a procedure for construing claims during a patent infringement action? If so, when and how is it performed?

The courts follow the approach of the European Patent Office on claims construction. The claims define the protective scope of the patent; and the description and drawings can be used to interpret the claims, if necessary. The claims are construed at the filing or priority date.

8.2 What is the legal standard used to define disputed claim terms?

The description and/or drawings are used to interpret the meaning of disputed claims terms.

8.3 What evidence does the court consider in defining the claim terms?

While there is no limitation on the evidence that can be produced, the court will normally consider expert reports in defining the claim terms.

8.4 Can the claims of a patent be amended in the course of the proceedings?

A patent can be amended by the court in revocation proceedings, in which case the patent may be limited to the extent requested. In national proceedings based on a European patent, amendment is also possible under Article 138(3) of the European Patent Convention.

9 Defences and counterclaims

9.1 What defences are typically available in patent litigation?

An alleged infringer will usually base its defence on non-infringement or invalidity of the patent enforced. Furthermore, in preliminary injunction proceedings, defendants may also present objections based on urgency.

9.2 Can the defendant counterclaim for revocation or invalidation of the patent? If so, on what grounds and what is the process for doing so?

A defendant may challenge the validity of a patent either:

• by filing a nullity action; or
• by filing an objection in the course of the infringement proceedings, arguing that the claimant's patent is invalid. Such objection can also be filed in the context of preliminary injunction proceedings.

According to the Patent Law, a patent may be declared invalid if:

• the patent holder is not entitled thereto;
• the invention does not fulfil the patentability criteria (novelty, inventive step, industrial application);
• the description lacks sufficiency; or
• there is added matter.

If an objection of invalidity in preliminary injunction proceedings is sustained, it does not produce permanent res judicata effects. A patent can be declared definitively invalid only by way of a nullity action (main proceedings).

9.3 Are there any grounds on which an otherwise valid patent may be deemed unenforceable against a defendant?

If the patent holder has failed to act within five years of the date on which it became aware of the infringement, or of the damage and the infringer's identity.

10 Settlement

10.1 Are mediation and/or other forms of settlement discussions required by the court in your jurisdiction or merely optional to the parties?

In proceedings on the merits, it is mandatory for the parties attend an initial meeting with a mediator who will inform them of the possibilities to resolve the dispute through mediation. Attendance at this meeting is a precondition before the case can be heard before the court. However, mediation itself is optional for the parties.

10.2 Can the proceedings be stayed or discontinued in view of settlement discussions?

The parties may enter into mediation proceedings, in which case the proceedings on the merits will be stayed pending the outcome of the mediation proceedings.

10.3 Is it necessary to report the results of settlement discussions to the court? If so, how; and what are the implications?

A settlement agreement obtained through mediation may be submitted to the court for certification and will then become an enforcement title.

11 Court proceedings for infringement and validity

11.1 Are court proceedings in your jurisdiction public or private? If public, are any options available to the parties to keep the proceedings or related information confidential?

Court proceedings are public. The court may, upon the request of the parties, take measures to preserve the confidentiality of trade secrets presented in the course of the proceedings.

11.2 Procedurally, what are the main steps in patent infringement proceedings in your jurisdiction? Is patent validity handled in the same proceedings as infringement or is it handled separately? If separate validity proceedings are available, what are the main steps in those proceedings?

Infringement or validity proceedings commence with the filing of a writ by the claimant stating the facts on which the action is based and a request for relief. This must be served on the defendant within 30 days of filing (60 days where the defendant is based abroad).

Within 120 days of filing (180 days for foreign defendants), the parties must submit their brief and evidence. The parties have the right to submit a rebuttal brief within 135 days of the filing of the main action (195 days for foreign defendants).

The next step is the main hearing, which will usually be scheduled for within one or several months (depending on the workload of the court). The parties primarily rely on their written submissions and only in exceptional cases will witnesses be examined orally.

If invalidity is raised as a defence/counterclaim to infringement, the court will consider validity and infringement together. However, if an invalidity action is brought separately, the court may either consolidate the invalidity and infringement actions or leave them bifurcated; if bifurcated, the action issued second will be stayed pending the outcome of that issued first.

11.3 What is the typical timeframe for patent infringement proceedings? If separate patent validity proceedings are available, with is the typical timeframe for those proceedings?

The average time to obtain a decision on the merits (infringement or invalidity) is estimated at between 16 and 24 months from filing of the action.

11.4 To what extent do the decisions of national or foreign courts or bodies influence the court's decision?

While not binding, the court will often consider the decisions of Greek or foreign courts, which may have an impact on its case evaluation.

12 Remedies

12.1 What remedies for infringement are available to a patent holder in your jurisdiction?

The remedies available to a patent holder in case of patent infringement relate to either:

• the prohibition of any infringing act and/or the obligation imposed on the defendant to refrain from such act; or
• the financial compensation of the patent holder for the damage suffered.

12.2 Are punitive or enhanced damages available in your jurisdiction? If so, how are they determined?

There are no provisions on punitive or enhanced damages.

12.3 What factors will the courts consider when deciding on the quantum of damages?

The patent holder may claim damages based on:

• actual damage suffered;
• the defendant's profits from the infringement; or
• the amount of a notional licence fee.

13 Appeals

13.1 Can the decision of a first instance court or body be appealed? If so, on what grounds and what is the process for doing so? Please also describe the availability and process for additional levels of appeal.

A first-instance judgment on the merits may be appealed to the court of appeal within:

• 30 days of service of the judgment on the adversary (60 days in the case of foreign parties); or
• two years of the date of publication of the judgment if this is not served by the other party.

The appeal can be based on factual or legal errors in the decision. A further appeal before the Supreme Court is available for errors on points of law.

13.2 What is the average time for each level of appeal in your jurisdiction?

• Court of Appeals: Ten to 12 months.
• Supreme Court: Two and a half to three years.

14 Costs, fees and funding

14.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

The typical costs of a preliminary injunction application are €20,000 to €40,000; while the costs of an action on the merits may be around €20,000 to €50,000, depending on issues such as:

• the complexity of the matter;
• the amount of evidence; and
• expert reports.

The court fees are €422 for filing a preliminary injunction application and €460 for a main action. In addition, if a claimant brings a claim for compensation, it must pay a court fee of approximately 1% of the requested amount.

The winning party is entitled to recover its litigation costs from the losing party. However, in practice, the costs awarded are often much lower than those incurred.

14.2 Are contingency fee and/or other alternative fee arrangements permitted in your jurisdiction?

Yes.

14.3 Is third-party litigation funding permitted in your jurisdiction?

There are no provisions that prohibit third-party litigation funding.

15 Trends and predictions

15.1 How would you describe the current patent litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The patent litigation landscape in Greece has remained unchanged in recent years. Most cases relate to life sciences. The duration of proceedings in actions on the merits has increased lately. There are no proposed legislative reforms of which we are aware.

16 Tips and traps

16.1 What would be your recommendations to parties facing patent litigation in your jurisdiction and what potential pitfalls would you highlight?

Preliminary injunction applications are heard before a court that is not specialised in intellectual property, and it may often be necessary to present the case to the court in a simple and convincing manner. It is recommended to obtain attorneys with experience in such proceedings in order to optimise the chances of success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.