tag:blogger.com,1999:blog-5574479.post8683189902657117745..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Europe's patent judges call for improvements to Draft Agreement on Unified Patent CourtVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5574479.post-13062463283785635592012-11-03T08:50:50.820+00:002012-11-03T08:50:50.820+00:00So be it.So be it.Mark Andersonhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-16659125599520856022012-11-02T15:57:46.667+00:002012-11-02T15:57:46.667+00:00@Mark Anderson
Maybe you can read and report just...@Mark Anderson<br /><br />Maybe you can read and report just the next sentence:<br /><br />"There is, however, in our opinion an inevitability to their inclusion."<br /><br />That is what I mean, proponent of removal might have their own reasons, such a removal is not compliant with EU Law.<br /><br />Then note the final conclusion of UK European Scrutiny Committee : "This calls into question whether incorporating a unitary patent regime within the EU will ever be practicable."<br /><br />To be clear: if you don't want CJEU, then you cannot have a EU unitary patent.Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45549511170443149772012-11-02T13:51:07.329+00:002012-11-02T13:51:07.329+00:00@ Gibus. Hold on a minute. I have not checked al...@ Gibus. Hold on a minute. I have not checked all your claimed supporters, but the very first of your links I looked at - the European Scrutiny Committee - included the following statement:<br /><br />We agree with those who so strongly oppose the inclusion of Articles 6 to 8 in the unified patent Regulation.Mark Andersonhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-69836531446246298112012-11-02T07:48:48.795+00:002012-11-02T07:48:48.795+00:00"The Amerikat and patent judges does not want..."The Amerikat and patent judges does not want to hear".<br /><br />So far, I have heard patent judges in several continents, all the IP lawyers that I have heard express views, and the British prime minister all saying the same thing - drop Articles 6-8. The main counter-view seems to come from people whose interest in IP is less than their interest in the powers of European institutions, including some in the European Parliament.<br /><br />On an unrelated topic, why are so many correspondents on IPKat anonymous? I am much more open to persuasion by comments from people who identify themselves and whose CV I can see on LinkedIn or on their firm's website.Mark Andersonhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4850967290016421872012-11-02T00:02:26.287+00:002012-11-02T00:02:26.287+00:00...or maybe they don't want to see the whole s......or maybe they don't want to see the whole system put to waste by a bunch of incompetent amateurs in the higher court.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-79668976176622587932012-11-01T20:13:04.646+00:002012-11-01T20:13:04.646+00:00I'm sorry but I've missed something about ...I'm sorry but I've missed something about the idealogical wish that deleting Arts 6 to 8 from the regulation would be compliant with Art. 118 TFEU.<br /><br />First, note that this is not a unanimous opinion, even among Venice patent judges: two of them do not think so.<br /><br />Second, note the difference between IPJA:<br /><br /><i>"1. That they are (save for 2 Judges) of the opinion that Art.118 of the TFEU does not require that questions of what acts amount to infringement of a patent should be matters of EU law. All that Art. 118 requires is that any IP right created pursuant to Art. 118 should have a unitary and uniform character."</i><br /><br />and Max-Planck Institute:<br /><br /><i>"10. Incorrect legal basis for the unitary patent.</i><br /><br /><i>Art. 118(1) TFEU provides a legislative basis for the “creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union”. Accordingly, the provision envisages the establishment of a regime of protection which derives its substance from EU law. The Unitary Patent Package falls short of this.</i><br /><br /><i>a. Mismatch with the legal basis.</i><br /><br /><i>The UP Regulation claims EU origin for the unitary patent, but disclaims EU law quality for its central features (see reason 9.a). This approach is not covered by the scope and purpose of Art. 118(1) TFEU. At the very least, the terms of the individual right granted under the UP Regulation (patentability, exclusivity, property) must be such as to enable the ECJ to exercise its judicial review. This is even more necessary since the unitary patent forms part of the rules governing the functioning of the Internal Market.</i><br /><br /><i>b. Evasion of the EU legislative process.</i><br /><br /><i>Under the consistent jurisprudence of the ECJ, recourse must be had to legal bases where they are provided for in EU law. There is no legislative discretion as to what aspects of the unitary patent may be regulated in the UPCt Agreement vis-à-vis the UP Regulation. This concerns in particular the definition of the scope of exclusivity. Otherwise, the procedures and procedural safeguards provided for in the Treaties would be side-stepped and the principle of institutional balance compromised. A similar issue arises regarding the relationship between Art. 114 TFEU and the rules on infringement of the European patent in the UPCt Agreement."</i><br /><br />IPJA has only an opinion. MPI has reasoned arguments.<br /><br />But as the AmeriKat says, these judges are only an "interest group". Moreover, they are interested by being promoted as judges of the newly (if ever) created UPC. No doubt, that these judges will gain some powers if they are elected to seat at the UPC. No doubt also they do not want this power to be under the control of even more powerful judges, namely those of the CJEU.<br />Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21632120964759277202012-11-01T19:48:03.265+00:002012-11-01T19:48:03.265+00:00"Following in the footsteps of the Max Planck...<i>"Following in the footsteps of the Max Planck Institute"</i><br /><br />This is very misleading, as regards the first point. The MPI says exactly the opposite: removing article 6-8 from the regulation would not comply with Art. 118 TFEU.<br /><br />This has long been said and demonstrated, I won't repeat again the arguments and references. The Amerikat and patent judges does not want to hear. Go on, and you'll never have any unitary patent...Gibushttps://www.unitary-patent.eunoreply@blogger.com