tag:blogger.com,1999:blog-5574479.post2595954330232763077..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: Speech from European Judges Forum: But Sir Robin, let's be frank, we will put (just to be short), in Milan the Central Court...Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-40931263232189573702017-11-17T13:24:12.537+00:002017-11-17T13:24:12.537+00:00While reference has been made to establihshed case...While reference has been made to establihshed case law of the EPO, it is clear from numerous decisions that the EPO itself considers that it is only obliged to be bound by "G" decisions. In many decisions it has been pointed out, seemingly mainly to UK authorised representatives, that the EPO relies on a legal code (the EPC) and, unlike Anglo-Saxon legal practice, is not necessarily bound by precedents because non-"G" decisions are not "case law" as per UK practice.<br /><br />See for example T 0154/04: para 2. <br /><br /> 2. .... the legal system of the European Patent Convention gives room for evolution of the jurisprudence (which is thus not "case law" in the strict Anglo-Saxon meaning of the term) and leaves it to the discretion of the boards whether to give reasons in any decision deviating from other decisions or to refer a point of law to the Enlarged Board. <br /><br />G 0003/08 : reasons: <br /><br />7.3.1 Development of the law is an essential aspect of its application, .... That is especially true of Anglo-Saxon law, where a decision on an individual case has far greater implications as a precedent than judgments in continental civil law. <br /><br /><br />T0910/06 <br /><br />2.8 To the extent that the absence in the decision under appeal of any reference to the "established case law" ... is seen in itself by the appellant as a "substantial procedural violation" it must be recalled that unlike some Anglo-Saxon legal systems which are precedent driven, the instances of the European Patent Organisation work within a codified system of law, i.e. the European Patent Convention and its implementing regulations, and are constrained by case law only in the case of decisions handed down by the Enlarged Board of Appeal. <br />Ronnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33196177505300084432017-11-17T07:02:26.543+00:002017-11-17T07:02:26.543+00:00Regrettably, smug and totally misses the point. He...Regrettably, smug and totally misses the point. He'll not change opinions with a speech like that.Arthur Fiftynoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67242903644413752002017-11-16T21:29:16.024+00:002017-11-16T21:29:16.024+00:00as to the usefulness of the UPC, here is what I po...as to the usefulness of the UPC, here is what I posted, earlier today, to the Kluwer blog:<br /><br />When it comes to the UPC, the level of pleading from vested interests, parties with “an Agenda” is enough to make one puke.<br />I started in the patent profession before the EPO, in the days prior to the Protocol on Art 69 EPC, when Germany decided scope of protection one way, and England in a very different way.<br />Since then, there has been ever greater harmonisation throughout EPC-land, and a huge gain in legal certainty. Not because of any pan-European court but because of enlightened performance at the EPO (until recently), and comradely behaviour from the patent judges in the leading EU jurisdictions. Judges are only human. They want their clear and logical thinking to be adopted by their brother and sister judges in the other jurisdictions. Bear in mind that these other jurisdictions have very different procedural law. But they come together regularly, to debate and minimise their differences, which are steadily diminishing (see the latest Decision by the UK Supreme Court, to aligh itself with mainland Europe).<br />This rivalry between different procedures and different legal interpretations is what improves the clarity of the law of infringement in the whole of Europe. If you doubt me, observe how rivalry between the various Technical Boards in EPO DG3 has produced a body of caselaw, in the White Book of Established Caselaw, that is unassailable in its logic and so has swept the world. For the most recent example, see the current IPKat interview with the Head of the Patent Office in Australia.<br />The proponents of the UPC should be ashamed of themselves, sacrificing all this legal certainty and harmonisation at the behest of the multi-national corporate interests, the bulk users of the EPO patent grant service, to rid themselves of the attentions of troublesome SME patent owners. And we were doing quite well enough recently, with engineering disputes litigated in Germany and pharma litigation concentrated in London, and no need to litigate everywhere in order to resolve the dispute.<br />As Robin Jacob has said “We can learn from the Americans. Watch what they do, and don’t then make the same mistakes”. Introducing this UPC is to make the same mistake as the Americans. And note, for the same reason.<br />Germany, the home of the SME engineering manufacturer is, with its Constitutional doubts, is belatedly seeing the light. Better late than never.MaxDreinoreply@blogger.com