Validity in patent infringement proceedings - a new approach to transnational jurisdiction

Validity is frequently raised as an issue in patent infringement proceedings, either as a defence or as a preliminary question. Where a court may hear a dispute in relation to infringement of foreign patents, whether the court could and should adjudicate their validity is controversial. This article examines five approaches to this matter. It concludes that none of these approaches is perfect and that there is a lack of evidence-based assessment as to their efficiency. It then moves on to discuss the similar jurisdictional segregation which occurs between validity and infringement at the domestic level in those countries which have adopted a bifurcation system of patents. It suggests that measures adopted domestically may shed light on the international conflict, and that courts should consider factors exceeding those ordinarily considered by international lawyers. A jurisdiction 'matrix' is proposed, aimed at providing a pragmatic solution. It grants the court on infringement the initial power to screen the likelihood of success of the infringement claim and then the validity defence, taking into account the accuracy of decision, expertise, chances of success, sound management of justice and deterrence of torpedo defences, before making a decision on validity jurisdiction.