tag:blogger.com,1999:blog-5574479.post8070905958167959830..comments2024-03-19T13:13:18.609+00:00Comments on The IPKat: Bifurcation of European patent litigation: a practitioners' perspectiveVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-5574479.post-39114356139668999102013-03-14T07:56:28.086+00:002013-03-14T07:56:28.086+00:00Was it an oversight to confine to "Regional&q...Was it an oversight to confine to "Regional" Divisions? One hopes so. For if it were deliberate, that might show arrogance on the part of the Big Country drafting fathers, that their Local Divisions will have the competence to handle validity whereas little country Regional Divisions might not. Now that really would be ironic, given the fact of bifurcation in Germany. I think it is like saying (as one Big Country judge just did) that we must respect the established jurisprudence of the EPO on issues of patent infringement (see another thread currently running in this excellent blog).MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72012541594318642632013-03-13T20:08:47.288+00:002013-03-13T20:08:47.288+00:00@MaxDrei Sorry Gibus, I cannot follow your line of...@MaxDrei <i>Sorry Gibus, I cannot follow your line of thought there. You tell us that we cannot read "alleged" in but must read "actual" in. Why the one but not the other?</i><br /><br />Simply because without being qualified (by being “alleged”, “claimed”, “imputed”), the infringement should be considered to be... the infringement. Full stop.<br /><br />But you're surely right, we are not in criminal law, where wordings should be well-defined. Frankly, there are too many places in the whole Unitary Patent package where the drafters have been vague enough to open space to various interpretations.<br /><br />And thanks also to Darren Smyth for pointing out that Art. 33.2 UPC only refers to <i>Regional</i> divisions and not <i>Local</i> divisions. I guess it is one more occurrence where UPC should be interpreted implicitly to means more than what is written down.Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-57286600665892896712013-03-13T13:17:42.092+00:002013-03-13T13:17:42.092+00:00Ah, good point Darren. The action has to be pendin...Ah, good point Darren. The action has to be pending before a "regional" Division. So that will exclude all infringement actions brought in Germany then.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-69359974369271928392013-03-13T13:08:37.462+00:002013-03-13T13:08:37.462+00:00For what it is worth, I am with MaxDrei here and d...For what it is worth, I am with MaxDrei here and disagree with Gibus. The provision in context clearly refers to the acts complained of, and not that actual infringement be admitted.<br /><br />On the other hand, I don’t understand why the provision relates only to “regional” divisions and not “local” ones.Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-5599245721945399482013-03-13T12:44:21.297+00:002013-03-13T12:44:21.297+00:00Sorry Gibus, I cannot follow your line of thought ...Sorry Gibus, I cannot follow your line of thought there. You tell us that we cannot read "alleged" in but must read "actual" in. Why the one but not the other?<br /><br />For me, taking the provision in context, "alleged" is implicit. I see no other xensible way to read it. <br /><br />And anyway, at least whenever there is an offer for sale on a website, the product accused of infringing in one EU Member State is doing it simultaneously in all Member States.<br /><br />So, far from wishful thinking, the Defendant will in practice almost always be able to invoke the provision and get to the Central Division.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32041771935373632662013-03-13T12:13:28.955+00:002013-03-13T12:13:28.955+00:00Gibus: What about if the defendant does not contes...Gibus: What about if the defendant does not contest that their product infringes the patent, but does contest validity? Surely forcing the issue into the central court and preventing bifurcation is still a worthwhile tactic in that case.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-46508098369758670612013-03-13T11:39:41.511+00:002013-03-13T11:39:41.511+00:00“If the product is marketed in more than three cou...<i>“If the product is marketed in more than three countries with a regional division, the choice of the patentee can be removed and the whole action referred to the central division, at the request of the defendant.”</i><br /><br />This is just wishful thinking. For a defendant requesting that the infringement action being referred to the central division, she needs to admit that there is actual infringement in 3 countries or more.<br /><br />According to Article 33(2) of the UPC Agreement (bold added):<br /><br /><i>“If an [infringement action] is pending before a regional division and <b>the infringement has occurred</b> in the territories of three or more regional divisions, the regional division concerned shall, at the request of the defendant, refer the case to the central division.”</i><br /><br />The defendant has not to admit that the <i>alleged</i> infringement has occurred, but that an <i>actual infringement</i> has occurred. This would lead the defendant to lose any infringement case.Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-91524035997048216192013-03-13T10:44:28.376+00:002013-03-13T10:44:28.376+00:00“Taylor Wessing LLP -- a law firm which rotates ar...<i>“Taylor Wessing LLP -- a law firm which rotates around a decidedly Anglo-German axis since it has six offices in Germany”</i><br /><br />For the sake of completeness, it should be added that Taylor Wessing LP also hires Klaus-Heiner LEHNE, who is a Member of the European Parliament, but also chairman of the Committee on Legal Affairs (JURI, which was the (ir-)responsible committee in charge of the Unitary Patent and the UPC), and finally the rapporteur for the European Parliament for its opinion on UPC.Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-54132433080527589152013-03-13T10:37:20.314+00:002013-03-13T10:37:20.314+00:00MaxDrei, with regard to oppositions, in order to c...MaxDrei, with regard to oppositions, in order to copy the German approach, non-Germans will have to start watching the issuance of their competitors' patents much more closely, so as not to miss the opposition period. There are also some cultural obstacles for some countries to follow this approach: American companies are notoriously wary of using oppositions to contest the validity of a patent, for instance.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-62053164120969320912013-03-13T09:09:48.625+00:002013-03-13T09:09:48.625+00:00On "clearing the way" note that Germans ...On "clearing the way" note that Germans file 60% of all oppositions at the EPO. In their bifurcated system, it makes sense. Given what Taylor Wessing write above about seizing the initiative and getting one's retaliation in first, perhaps technological innovators in other Member States should think now about starting to copy the German approach? There are an awful lot of patent attorneys in Germany, all quite busy.<br /><br />This is all very well for mech/chem/bio but what about EE? Clearing the way through those thickets is well-nigh impossible isn't it?<br /><br />Only asking.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25238777223702233462013-03-13T09:01:52.025+00:002013-03-13T09:01:52.025+00:00Why does Germany bifurcate? Because its Constitut...Why does Germany bifurcate? Because its Constitution (Grundgesetz) leaves it no other way. How do patent judges in Germany cope with this immovable obstacle? With the Formstein Doctrine and other devices to allow the court trying infringement to take cogniscence of validity issues.<br /><br />So how will the beefed-up and international-ised patent courts of Germany take to the UPC? Like a duck to water, I shouldn't wonder, bifurcating only when they don't fancy doing validity (and when will that ever be?). After all, the home of patent litigation in Europe is Germany (order of magnitude more of it than in any other EU Member State) and so every patent litigator in Germany will do what the customer wants, including running infringement and validity cases all together and as much as possible of it in English. <br /><br />Oder? MaxDreinoreply@blogger.com