tag:blogger.com,1999:blog-5574479.post1342201419323081683..comments2024-03-18T17:10:35.838+00:00Comments on The IPKat: UPC to open in December - a triumph of hope over experience?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-5574479.post-80410493664788194322017-03-07T23:27:07.343+00:002017-03-07T23:27:07.343+00:00One of the most particular things about the UPC is...One of the most particular things about the UPC is that the European Union needs the court which would be able to handle a bunch of litigations in a several national EU jurisdictions. Instead, the EU will receive with the UPC something quite different, i.e. a EU-wide court with an exclusive EU-wide jurisdiction in the long term. <br /><br />So, it resembles the situation where you go to the shop to by a car but return with a bought train. The Cat That Walks by Himselfnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80188589297137305222017-03-07T13:56:31.137+00:002017-03-07T13:56:31.137+00:00As the pudding of proof agreed with my point, it i...As the pudding of proof agreed with my point, it is only courteous for me to return the complement. The narrowness of the Bolar provision provided by UPCA, which refers directly to the Directive demonstrates a serious lack of foresight from those who drafted this legislation. A complete failure to learn from the experience of others is pretty dumb. The Bolar provision has a clear, direct, effect on the European pharmaceutical industry and the benefit of broader provisions has been demonstrated to be economically beneficial. So much so that the UK updated its rules.<br /><br />The argument against pharma using the unitary paten option may considered to be tempered by this narrow Bolar provision giving them improved protection, but I seriously doubt this to be an important factor. The other issues mentioned above are those that will be the determining factors against the unitary route.<br /><br />The wording of the Directive appears set in stone within the UPCA. What if the EU decides to broaden the allowable acts, will this agreement be updated automatically?<br /><br />Finally, why would the UK wish to remain within this patent union once it has left the EU, with so many important provisions being under the control of the EU and especially when such provisions have already been rejected?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17917963895983283192017-03-07T13:06:30.741+00:002017-03-07T13:06:30.741+00:00The best at all ist that it is neither necessary t...The best at all ist that it is neither necessary to follow the proof of the pudding approach nor to convince the author to get the PCC into operation ...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6250489322445062902017-03-07T08:23:45.356+00:002017-03-07T08:23:45.356+00:00I find myself agreeing with Observer again. Well ...I find myself agreeing with Observer again. Well said sir / madam!<br /><br />Anon at 6 March, 18:31 has a very good point too. Whilst it has often been said that the pharma industry will be a user / beneficiary of the UP system, I am not so sure. Who would want to put their prize possessions into a very uncertain and likely unstable system? Saving money on renewal fees (and potentially reducing litigation costs) is all very well, but the "old" system still looks better (more secure) on balance if you can afford it... which big pharma can.<br /><br />I have to say that I have been utterly amazed by the glib way in which many proponents of the UPC have dismissed / minimised concerns raised regarding some of the detrimental effects of the UP system. Observer has pointed to two of the most serious of these, namely non-compliance with EU law and the (more than merely plausible!) problems enforcing UPC judgements in the UK. I have never seen any convincing arguments from a UPC proponent that explain why we should not be seriously concerned about these issues. But this is just the tip of the iceberg. Many more issues lie beneath.<br /><br />Let me just raise one further issue now. Retroactivity. This is a <b>huge</b> problem with the UPCA. This is because that Agreement purports to apply <b>new</b> law to existing EP applications and patents. There are no transitional provisions whatsoever.<br /><br />Now you might ask what I mean by "new" law. Really this relates to the provisions for indirect infringement, as well as the exceptions from infringement. In monoist countries (e.g. Germany and France), where ratification of the UPCA directly imports the provisions of that Agreement into national law, this could lead to quite a shock. This is because there will be instances where acts that did not infringe a patent one day will (with no change other than the UPCA coming into force) infringe it the next. Worse still, due to the absence of transitional provisions, previous acts could retroactively be held to be infringing.<br /><br />This situation is of course absurd (and, moreover, contrary to general principles of EU law). But it does not appear to have bothered the legislators at all. However, I wonder if the legislators in France and Germany realise that (for all but national patents) they are just about to relinquish those nice, broad "Bolar" provisions that they took such care to draft? After all, the Bolar in the UPCA (which will take precedence over national law) is very narrow indeed.<br /><br />Proof of the puddinghttps://www.blogger.com/profile/14209291532431506713noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-43013521931002853132017-03-06T22:49:22.818+00:002017-03-06T22:49:22.818+00:00The optimists are those members of the ruling cliq...The optimists are those members of the ruling clique whose opinions outway all others.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33091255947968912882017-03-06T20:48:47.247+00:002017-03-06T20:48:47.247+00:00it is clear that it can only be those who hope it ...it is clear that it can only be those who hope it will happen....Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36820386066235796262017-03-06T19:56:16.295+00:002017-03-06T19:56:16.295+00:00Just to be clear - are the optimists those who thi...Just to be clear - are the optimists those who think it won't actually happen or those who hope it will happen?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33518612126156121482017-03-06T18:31:00.454+00:002017-03-06T18:31:00.454+00:00Who are the numpties that are going to put their e...Who are the numpties that are going to put their employer's/client's important eggs in one unitary basket? Own up. We need to know who you are so we can never employ you in the pharmaceutical industry.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56734527146702211412017-03-06T17:57:12.185+00:002017-03-06T17:57:12.185+00:00That people in UK having been involved in the sett...That people in UK having been involved in the setting up of the UPC do not want to see that investment having been in vain is quite understandable. This is certainly the case for Bristows and similar firms. This can understandably motivate a certain optimism. <br />The same applies to Mr Hoyng, who was not really pleased with the reply he got from Mr Steenbeek in the EPLAW blog. I am of the opinion that Mr Stennbeek’s view is reasonable and correct, in spite of all the rest said in said EPLAW blog. <br />Whatever is happening, the UPC is a court among member states of the EU and finally submitted to the jurisdiction of the CJEU. It might be true that Opinion 1/09 has not said much expressis verbis, but when one reads between the lines, Opinion 1/09 was the death knell of EPLA. Enforcement once UK leaves the EU has also not been solved yet.<br />Does anybody seriously contemplate that the CJEU would accept something like EPLA, or without a proper regulation on enforcement? Envisaging the participation of non EU member states under those conditions is nothing more than wishful thinking. This is a first damper to optimism in the matter.<br />In this respect, I take bets that any decision adverse to a party taken by the local division of the branch of the central division in London will end up at the CJEU. What then? <br />In case of Brexit, UK would still have to accept the jurisdiction of the CJEU, which is politically not straightforward in view of the messages uttered by various UK politicians, starting with PM May. This is a second damper to optimism in the matter.<br />If Brexit comes, which is rather certain, then the UPC would be part of the general bargaining between UK and the rest of the EU member states. I doubt that this is a perspective which will encourage patent proprietors to have their patents going to be scrutinised by the UPC. <br />Uncertainty is anything but liked by industry and investors. So why should they go along with a system in which they do not know what their patent will undergo in case of litigation? It is thus to be expected that there will be a massive opt out until the situation has clarified. This is to me a third damper to optimism in the matter. <br />It goes much further than looking for practical solutions. It not only needs a political will, but as well a legal framework to proceed with UPC once UK has left the EU. Simply saying lets ratify and see what comes out later is neither reasonable nor serious. <br />To put a finishing touch: has anybody of the proponents of the UPC ever looked at the proportion of applications for an EPC patent from countries member of the EU, with or without UK? <br />If one is optimistic it is about a third. If one is pessimistic it is less than a third. As the number of patents granted are more or less in proportion to the applications filed, which countries will mainly benefit from the UPC? Certainly not the EU member states, with or without UK. And from those applications how many stem from the SMEs? Claiming that UP and UPC is beneficial to European industry and SMEs is nothing more than a fallacy. <br />This bring me down to the next question: who needs a patent in 25 countries at once? One should look at the number of validations of granted EPC patents before claiming that the UPC is an absolute necessity for European industry, and especially the SMEs. <br />Lobbying for the UP and the UPC was quite remarkable, but lobbying is never innocent. <br />I am neither optimistic nor pessimistic about the UPC, but there are so many problems lurking, that, whatever happens, I just hope that Europe will not one day regret having embarked on the UPC boat.<br />Observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-89316615108049583072017-03-06T16:58:02.549+00:002017-03-06T16:58:02.549+00:00Hopefully, whenever the UPC does start, the very s...Hopefully, whenever the UPC does start, the very significant effort that is currently being focused on pushing it through despite the obvious upcoming Brexit issue will be immediately refocussed on solving that issue... but somehow I doubt it. <br /><br />Much like, when Newcastle get promoted to the Premier League I would hope that there is a plan to compete and thrive in that league and the cups but I doubt it.Anonymousnoreply@blogger.com