tag:blogger.com,1999:blog-5574479.post2424651999280967041..comments2024-03-29T06:00:27.896+00:00Comments on The IPKat: Where the grass is greener: Irish professionals discuss the new EU patent regimeVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5574479.post-57009843572041507322013-04-18T09:13:53.637+01:002013-04-18T09:13:53.637+01:00I was surprised to learn that BLUE is the national...I was surprised to learn that BLUE is the national colour of Ireland (according to QI anyway)!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77908429831541261912013-04-16T17:01:28.206+01:002013-04-16T17:01:28.206+01:00"This is a new court -- and it is divorced fr..."This is a new court -- and it is divorced from all judicial procedures and processes that have gone before". What absolute poppycock. Advocates in front of the UPC are going to rely on case law of the previously competent courts. Thus the major patent jurisprudence of European superior courts will still be relevant - it is the same judges after all!! <br /><br />Provisional measures are far from clear under the UPC. Articles 60 and 62 are almost identical copies of Articles 7 and 9 of the Enforcement Directive. The implementation of these measures into national law has been bit-part to say the least. Harmonisation has not occurred even as to the measures available, never mind the evidentiary burdens on applicants, the requirements for securitisation or the rights of defendants in ex parte hearings. In some states all search orders are granted ex parte, while in other states search orders are unavailable.<br /><br /> The UPC rules of procedure (205-220) provide little extra clarity on provisional measures. However they do point out that the American Cyanamid test is far from out the door. The UPC specifically provides for weighing the interests of the parties at art 62(4) and the rules of procedure repeat this. One can imagine that under such an examination the adequacy of damages and that friend "irreparable harm" will be analysed. Such a balancing of interests is unknown in many civil law systems and so I would suggest that UPC provisional measures represents a synthesis of the available implementations.<br /><br />A worrying development must be identified in respect of freezing injunctions. Under the IPRED framework, freezing injunctions may be made available if judgment is likely to be frustrated. Under the UPC, there are two different articles alowing for freezing injunctoins - one in the normal frustration circumstance and a second where the applicant merely shows reasonably available evidence of infringement. The reason for this duplication is not clear to me.<br /><br />The most pressing issue is simply whether the local divisions will be allowed to apply differing procedures and implementations, just as has happened under IPRED. It seems unlikely though and would be thoroughly counterproductive.johnjohnsonnoreply@blogger.com