tag:blogger.com,1999:blog-5574479.post6011192586721470480..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Latest Europatent rumour: is it "bye-bye, infringement"?Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-5574479.post-35795605889888556592012-11-20T12:31:57.713+00:002012-11-20T12:31:57.713+00:00Think about substantive patent law in Europe on th...Think about substantive patent law in Europe on the eligibility of computer-implemented inventions. The various Technical Boards of Appeal of the EPO did a good enough job of reaching consensus that the EBA was able to find nothing wrong.<br /><br />Now look at the substantive law of infringement. We would rather not have the CJEU playing the EBA role and, anyway, the national equivalents of those Technical Boards have already reached more or less consensus. Purposive construction or a Doctrine of Equivalents? So long as all courts balance fair protection with reasonable legal certainty, there won't be much to complain about will there? The most important thing is to engineer ever more convergence. The convergence record of the last 30 years in Europe really is quite good, on both validity and infringement. Don't do harm to that trend, I say. just as Germany came around to the European view on novelty, after 30 years, so in another 30 years everybody will have the same purposive construction (or Doctrine of Equivalents). MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-5534487342852852452012-11-20T12:31:36.570+00:002012-11-20T12:31:36.570+00:00Anonymous@ 11:45: The text of the compromise has b...Anonymous@ 11:45: The text of the compromise has been purportedly leaked to the PCinpact website, linked to by Gibus two posts below:<br />http://static.pcinpact.com/images/bd/news/123418.png<br /><br />I'd rather prefer if the EU Council acted more transparently, but that's what we have. As for the content of the proposal, it's, as I say, a horribly inelegant solution, which may have some unintended consequences down the road, but its shortcomings may still be hammered out in the UPC proposal.<br /><br />I frankly would have preferred to keep Arts. 6-8, and hope that the ugliness of this solution may still make some people reflect on their past criticism. But it could be much worse.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-8494935937318727492012-11-20T11:56:00.341+00:002012-11-20T11:56:00.341+00:00Another view is that it might work quite well. For...Another view is that it might work quite well. Forum-shopping is inevitable, unless all eggs are to be put in one basket. European patent judges have begun to take notice of each other's decisions so that national laws may draw closer together. Isn't this better than having the CJEU reinventing the law from first principles? Who'd like to bet on that coming out right?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-28519807708742202212012-11-20T11:45:45.778+00:002012-11-20T11:45:45.778+00:00@anonymous 9:50 AM - I haven't read the actual...@anonymous 9:50 AM - I haven't read the actual proposal - could you please post a link or summarise where national law is to be taken into account? <br /><br />My concern is that, at the moment, national infringement laws are largely based on the CPC (at least to my knowledge). However, this has not stopped different EU countries adopting completely different approaches to infringement, even when they both take the same document (the CPC) as their basis, e.g. UK purposive contruction vs. German doctrine of equivalents. <br /><br />Does the latest EU proposal deal with these differences in approach? The UPC agreement (from memory) does not.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37670430223419312332012-11-20T09:50:38.173+00:002012-11-20T09:50:38.173+00:00After having read the actual proposal, I'm now...After having read the actual proposal, I'm now less nervous. Sure, it's an inelegant mess, but the extent to which national law would be applicable is actually extremely limited. Infringement is pretty much dealt with by the UPC agreement proposal, I can't see any loose ends to which the national law of the patentee would be applicable.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-74793305904290984742012-11-20T09:21:24.317+00:002012-11-20T09:21:24.317+00:00Incredible! Merpel and the Eurocrats have excelle...Incredible! Merpel and the Eurocrats have excelled themselves this time! Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14430517877814931122012-11-20T08:51:50.864+00:002012-11-20T08:51:50.864+00:00Wow! Just, wow! I don't like using hyperbole i...Wow! Just, wow! I don't like using hyperbole in online comments, but if the above proposal really is going to get passed, it will be massively open to forum shopping and abuse.<br /><br />The jurisdiction provisions from the CTM Regulation would have been a sensible starting point, but I imagine that this was rejected when the framers of the draft Regulation realised that people could forum-shop by using operating companies domiciled in the jurisdiction with the most anti-patentee courts (i.e. not Germany). However, at least all CTM courts have to apply the same, uniform EU laws. To allow EEUPC courts to apply the laws of different member states (as I understand the latest proposal will do) surely undermines the whole point in harmonisation. Legal costs will inevitably increase, and litigation will become even more uncertain. <br /><br />I am really going to enjoy explaining the new court structure to clients and non-EU lawyers.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-23500636203017499032012-11-20T08:26:59.863+00:002012-11-20T08:26:59.863+00:00Not sure if 'mortal' should read 'immo...Not sure if 'mortal' should read 'immortal' (penultimate paragraph) - though the Department is conscious that that there might be an ironical intention.Department of Minuscule Emendationsnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37754919208584925912012-11-20T06:55:22.051+00:002012-11-20T06:55:22.051+00:00So one should create a company to hold title to th...So one should create a company to hold title to the patents in whichever country is perceived has having the most pro-patentee stance? <br /><br />Which country would that be?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55476459203990465362012-11-20T06:37:53.979+00:002012-11-20T06:37:53.979+00:00Actually, I wanted to follow the session via live ...Actually, I wanted to follow the session via live broadcast - although, as we were told, even Commissioner Barnier attended the hearing (which was understood as proof that an agreement would be reached), there was no live broadcast. So one can only speculate what was discussed behind the closed doors. Democracy in Europe in the year 2012!nomorenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6855246004525333212012-11-19T23:36:20.942+00:002012-11-19T23:36:20.942+00:00I really like Merpel! Actually, MEPs have been inf...I really like Merpel! Actually, MEPs have been informed of the increased fragmentation that the Cyprus compromise would introduce. See also Max-Plank Institute and Hanns Ullrich's last paper.<br /><br />They seem to have heard the argument to some point since nothing was agreed this night.Gibushttps://www.unitary-patent.eunoreply@blogger.com