The scope of protection of patent claims in Europe and the UPC

Article 69 of the European Patent Convention links the scope of protection conferred by a patent to its claims. The Protocol on Interpretation of Article 69 EPC clarifies that courts should interpret the claims adopting an approach that combines a fair protection for the patentee with a reasonable degree of certainty for third parties. In this perspective, the claims should not be interpreted strictly, nor should they be treated as mere guidelines.
National courts have taken different paths towards the application of Article 69 EPC. In this article published by the Journal of Intellectual Property Law & Practice, our expert Paul England examines the approaches taken by courts in the UK, Germany, France and the Netherlands, highlighting their similarities and differences and examining the outcome of two parallel cases.
The UPC will need to build a coherent approach, seeking common grounds between the various national approaches and identifying appropriate solutions for areas of divergence.