tag:blogger.com,1999:blog-5574479.post8994618323389662687..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: CJEU refuses to throw España in the works – part IIVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger13125tag:blogger.com,1999:blog-5574479.post-13129022486105476952015-05-15T15:23:09.515+01:002015-05-15T15:23:09.515+01:00@David:
After a Brexit, the UK is no longer a Mem...@David:<br /><br />After a Brexit, the UK is no longer a Member State, so is no longer one of the three Member States in which the highest number of European patents had effect at the relevant date. That "Member States" are defined as the members of the EU seems to be of help here, if anything.<br /><br />I realise it is possible to interpret "Member States" in Art. 89(1) as "those states that were then members of the EU", but that does not seem to be the most straightforward reading AND it would lead to the paradoxical result that the Agreement, without amendment, could never enter into force after a Brexit. Interpretations that render an international treaty completely ineffective should normally be ruled out (Art. 31(1) Vienna Convention).<br /><br />Of course Art. 7(2) of the UPC agreement will look a bit funny after a Brexit.<br /><br />(Btw, why was Art. 89(1) drafted so sloppily? "the thirteenth instrument of ratification or accession ..., including the three Member States ..." Member States are not instruments. And if "the latest" of "the year" and "the first day" is "the year", which day of that year is to be taken?)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-7842762072414906402015-05-15T14:30:17.935+01:002015-05-15T14:30:17.935+01:00When one sees that at most 30% of the EP applicati...<i>When one sees that at most 30% of the EP applications stem from EU member states, one wonders why politicians claim that the UP will be easier and cheaper to enforce for SMEs and Universities. It is just not credible.</i><br /><br />Please explain how 70% of EP applications stemming from non-EU member states affects the claim that the UP will be easier and cheaper to enforce for SMEs and universities. That is just not logical.<br /><br />The claim might well be bogus, but that percentage has nothing to do with it. An SME with an UP really does not care whether 30% or 40% or 80% of all EP applications were filed by EU applicants.<br /><br />Did politicians ever claim that the UP will be bad for non-EU entities? Then you have a point. But I don't recall that they did.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-53051884724065415172015-05-15T14:12:43.545+01:002015-05-15T14:12:43.545+01:00@Anonymous 21:25:-
I disagree that it is so simpl...@Anonymous 21:25:-<br /><br />I disagree that it is so simple (though I'm not sure what the effect of a Brexit actually is). <br /><br />Article 89 de facto identifies the UK. It was one of the three Member States with the highest number of designations in the year preceding the signature of the agreement. The Netherlands was not one of those three:<br /><br /><i>Art 89(1). This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest.</i><br /><br />Interestingly the "Member States" are defined as the members of the EU, in contrast to the "Contracting Member States" who are party to the UPC Agreement.David Brophyhttps://www.blogger.com/profile/03756548361266218916noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71581875504565460722015-05-14T21:25:22.836+01:002015-05-14T21:25:22.836+01:00The Brexit should not influence the unitary patent...The Brexit should not influence the unitary patent. No states have been named in Art 89. Just those three with the most designations. Should GB fall out, it could be NL to take the place.<br />The translation problem at the beginning of the life of the unitary patent might be easy to solve. What is more worrying is that after a action has been started before the UPC, then it might become much more complicated, as it can be the language of the country of the defendant or the language in which the patent has been granted.<br />One important thing, interpretation costs for hearings before the UPC will not be free as before the EPO, but can be given to loosing party.<br />When one sees that at most 30% of the EP applications stem from EU member states, one wonders why politicians claim that the UP will be easier and cheaper to enforce for SMEs and Universities. It is just not credible.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-3449370119595680382015-05-13T22:21:12.061+01:002015-05-13T22:21:12.061+01:00BenQ, I think an EPUE is an EP. An EPUE is not ent...BenQ, I think an EPUE is an EP. An EPUE is not entirely governed by the EPC, just as the classical Dutch EP is not governed entirely by the EPC, but also by the Dutch patent act. The fact that there is implementing legislation does not mean that the EPC does not fully apply to a specific version of an EP (classical or unitary). <br /><br />Article 65 EPC applies to EP contracting states. Article 148 provides that (those) contracting states may provide for unitary EP and the unitary effect regulation (see article 1) is a special agreement in the sense of Article 142 EPC. The unitary patent regulation is -as well as being EU law- thus also an agreement in the context of the EPC, and thus EPC regulations must apply, unless specifically abrogated in the EPC.... Where a member state a contracting state has limited the applicabilility of article 65, through the LA, it should also be held to apply that limitation when it enters into agreements in the sense of Article 148...TreatyNotifierhttps://www.blogger.com/profile/14781646153904815142noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-30896127430760873432015-05-12T15:15:46.478+01:002015-05-12T15:15:46.478+01:00TreatyNotifier, from what I can see, an EPUE is ex...TreatyNotifier, from what I can see, an EPUE is examined applying the EPC, but it is not entirely governed by the EPC (as otherwise there wouldn't be any further Regulations that in fact govern the EPUE). Article 65 EPC applies for EP Contracting States and EP-patents. It does not apply for EPUE-patents. So, an EPUE is not an EP. Applicants may choose to make an EP an EPUE (for some EPC member states and/or some EPUE"-member" states). If an EPUE is a way to "avoid" the LA requirements, it does not breach the LA, as Article 65 EPC does not apply to the EPUE?benQhttps://www.blogger.com/profile/00568860054806272193noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-86858805176921275722015-05-12T14:12:15.274+01:002015-05-12T14:12:15.274+01:00BenQ, thanks for the response. We are getting clea...BenQ, thanks for the response. We are getting clearer and clearer where our opinions differ. <br />For individual states that have ratified the LA, they have the international obligation (towards other LA states) not to enter into obligations which run contrary to the LA; and they would have an international oblicatoin (towards UPC agreement states) to apply the UPC agreement. If there is will be different membership between both treaties (and there is), then a state entering into both treaties should make sure it can conform to both treaties. If it can't it shouldn't ratify... <br /><br />So is there a conflict?<br />The question boils indeed down to: is a EPUE formally an EP in the sense of the EPC? To be frank, I don't see why it wouldn't. The EPC agreement (and the UPC agreement, and the unitary patent regulation) speak about "attribution of unitary effect" to an EP and I would assume that this attribution does not make it formally a non-EP. This view seems at least to be consistent with the link between that other unitary patent that exists already for years: between Switzerland and Liechtenstein. Both countries only have an (automatic) unitary effect, and no classical EP besides that; they are furthermore LA states. If the unitary patent for Switzerland-Liechtenstein would thus not constitute formally an EP in their territories, then their implementation of the LA would be without substance (because it would only apply to classical EP , which don't exist) [but then, one could indeed say that in the EUs EPUE, classical EP always remain, and thus in that case there is 1 way of implementing LA (classical EP); so implementation with non classical EP (EPUE) is not necessary; as said before: I don't think that there is legal basis for that interpretation in the EPC or the LA).TreatyNotifierhttps://www.blogger.com/profile/14781646153904815142noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48530618043407822592015-05-12T09:02:06.170+01:002015-05-12T09:02:06.170+01:00@TreatyNotifier
Sorry for the belated response. I ...@TreatyNotifier<br />Sorry for the belated response. I don't think that the UPC agreement is breaching the LA for at least this reason: the LA ist not applicable to any state that did not ratify it. So either a state ratifies the UPC agreement and then it dispenses with the language requirements as defined therein, or the state ratifies the LA and defines the translation requirements within the frame of the LA, or both. Where a state has ratified both, it depends on the route the patent has taken, substantially they are all "EP"s, formally they will be either "EP" or "EPUE". Hence, the assumption "-an EPUE is an EP" maybe wrong.benQhttps://www.blogger.com/profile/00568860054806272193noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65095781551682800482015-05-08T15:34:26.249+01:002015-05-08T15:34:26.249+01:00@benQ , I agree with you it is somehow fair to imp...@benQ , I agree with you it is somehow fair to impose this extra translation for an additional option in the EP-system. If someone doesn't like it, they can always go for EPs that remain "classical"<br /><br />But I just wonder if it with ratifying the UPC agreement, the London agreement would be breached. My reasoning:<br />-translations are allowed to be requested for EPs<br />-translation requirements form an exception to the "no formalities" principle (an EP takes immediate effect everywhere, where designated)<br />-the EPC basis for this exception is 65(1)<br />-the london agreement limits the applicability of 65(1) for EPs valid in a certain state<br />-an EPUE has translation agreements, they -as an exception to the no formalities principle- need to have a legal basis in EPC<br />-that legal basis can only be 65(1)<br />-an EPUE is an EP<br />-, which "may only be granted jointly" (art 142) by UK, FR, DE and others; thus unitary effect constitutes granting for the UK (+FR, DE, ...)<br />-the London agreement holds for EPs of every member state (Any State party to this Agreement having an official language in common with one of the official languages of the European Patent Office shall dispense with the translation requirements provided for in Article 65, paragraph 1, of the European Patent Convention.), and thus for every EP, incl EPUE<br /><br />But again, I could be wrong in this interpretation and welcome your assessment. And if I am right, I see no court where one could go to (except maybe challenging ratification with the const court of Germany, which may -I have no idea- evaluate whether an older treaty obligation can prevent ratificaton of conflicting treaties) <br />TreatyNotifierhttps://www.blogger.com/profile/14781646153904815142noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-13268846074166273892015-05-08T14:23:45.984+01:002015-05-08T14:23:45.984+01:00@TreatyNotifier:
Where should the conflict with th...@TreatyNotifier:<br />Where should the conflict with the London Agreement lie? It concerns "classical" EP patents and Article 65 EPC. Hence, whlie the situation may sound absurd, for an EP patent you would not need to file a translation, while for a EPUE patent you'll have to.<br /><br />I also cannot see any real bad in the EPUE patent system: as long as applicants can decide which route to take, "classical" EP or EPUE, they can decide how to best implement protection for their invention in the European (contracting) states. If they only intend to go for DE, FR, EN, ES, IT, why should they opt to head for an EPUE? If they don't trust that a Unified patent court will be able to appropriately take care of their legal interests, why should they head for an EPUE? <br />Or am I ridden by a misconception here?benQhttps://www.blogger.com/profile/00568860054806272193noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82009133056979409952015-05-06T13:17:51.263+01:002015-05-06T13:17:51.263+01:00I wonder whether the translation requirements runs...I wonder whether the translation requirements runs contrary to the London Agreement. The UK is not allowed to request a translation, so why would it be allowed to request one in a unitary patent in which it participates (note: from an EPC point of view, it are the member states that make the unitary patent, not the EU). <br /><br />However, IF this runs contrary to the London agreement, there seems to be no court with jurisdiction to say so:<br />-national (UK) courts have no jurisdiction over unitary patents<br />-CJEU may say that the the london agreement provisions are contrary to the unitary patent regulation and are thus "inapplicalbe national law", but it has not basis to say a member state is in conflict with a non-EU treaty/regulation<br />-UPC will only apply treaties applicable to all states (... as well as "national law", but that can not mean that all provisions of all parties can be regarded to apply without any delimitation)...TreatyNotifierhttps://www.blogger.com/profile/14781646153904815142noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42983579211803106532015-05-06T10:35:45.576+01:002015-05-06T10:35:45.576+01:00The UK will welcome this judgment -perhaps not som...The UK will welcome this judgment -perhaps not some of the reasoning- as it sees enhanced cooperation as a way in which it can stay in EU -it can cherry pick the laws that will apply to it. <br /><br />You should compare this public international law + EU law structure with the one the UK negotiators also managed to achieve in the banking resolution package. But these are issues for pure EU constititional lawyers of which IP law is now firmly part. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55140834836525783462015-05-06T09:04:54.730+01:002015-05-06T09:04:54.730+01:00All that's left now is for the major countries...<i>All that's left now is for the major countries to ratify. Which presumably is just around the corner, right?</i><br /><br />Which brings us back to the question of the consequences of a "Brexit". Am I correct in assuming that this would require a further diplomatic conference?<br /><a rel="nofollow">http://ipkitten.blogspot.com/2015/04/the-ipkat-is-again-irate-more.html?showComment=1430223004995#c2332967131274477324 </a>.ExaMinusnoreply@blogger.com