tag:blogger.com,1999:blog-5574479.post2617442693415125199..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: Scrutiny Committee: red-line the unitary patent proposals (Part II)Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-5574479.post-64888833027337391532012-03-23T23:08:04.749+00:002012-03-23T23:08:04.749+00:00I had thought that it was the CJEU jurisprudence i...I had thought that it was the CJEU jurisprudence in the area of registered trademark law that was hitherto the best illustration of what might happen if it were also to be the supreme court in Europe for patent law. By contrast, the jurisprudence of the EPO is clear and ever clearer, a guiding light for the supreme courts of all EPC Member States.<br /><br />I wonder, does that anonymous disagree i) on trademark law or ii) on patent law?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56703901680727210642012-03-23T13:26:17.221+00:002012-03-23T13:26:17.221+00:00Will somebody please call Nestle, whose Prometheus...<i>Will somebody please call Nestle, whose Prometheus business just went down in flames at the Supreme Court of the USA. Perhaps Nestle can help the politicians of Europe to grasp how disastrous it would be for patent law in Europe to be set by the CJEU.</i><br /><br />Or perhaps somebody should call the Mayo Clinic, whose work was compromised by Prometheus' patent (which, for different reasons, would never have been held valid in Europe, anyway). There are always at least two sides to any litigation, and there are very good arguments of principle that patent law, like any other aspect of the law, should never be allowed to detach itself entirely from the rest of the legal system. And while some of our American cousins may be extremely critical of this particular Supreme Court decision, you'll find very little backing in the US legal profession, never mind the population at large, for taking patents out of the purview of the Supreme Court.<br /><br />I am personally convinced by the arguments of Prof. Tilmann, which for some reason have found extremely little echo in this blog, regarding how Art. 118 TFEU makes it unavoidable to have Arts. 6-9, or equivalent provisions, within the Unitary Patent Regulation. I am also less than impressed by how some of the critics of the proposed regulation attack the competence of the CJEU judges and indeed the EU as a whole.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71987285089663893802012-03-23T06:18:19.308+00:002012-03-23T06:18:19.308+00:00You are free to ask. But the EPO is free too, to g...You are free to ask. But the EPO is free too, to give each ask the weight it thinks appropriate. If your ask is more persuasive than the ask from the judge handling an infringement action, then it will be even more effective then, won't it.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-26546374733040824502012-03-22T22:57:57.368+00:002012-03-22T22:57:57.368+00:00May I ask on behalf of everyone else? Or, can I at...May I ask on behalf of everyone else? Or, can I at least ask for examination to be speeded up on 3rd party applications of interest to me?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77777379949023658942012-03-22T22:23:42.458+00:002012-03-22T22:23:42.458+00:00Should that ever happen, we will find out, won'...Should that ever happen, we will find out, won't we.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66519588067407663282012-03-22T18:37:09.621+00:002012-03-22T18:37:09.621+00:00And if everyone asks?And if everyone asks?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60138704080225088672012-03-22T16:00:18.322+00:002012-03-22T16:00:18.322+00:00Anon writes: The real problem with European patent...Anon writes: The real problem with European patents is the slowness of the system.<br /><br />But can that be right? In the file on my desk is an EPO Board of Appeal case that I am watching. It is moving very fast because, just a few weeks ago, the infringement court in Italy asked the Board to get a move on. It has done.<br /><br />Moral: if you don't ask, you don't get. Ask and you might be surprised.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82865107534473256572012-03-22T15:25:58.406+00:002012-03-22T15:25:58.406+00:00If you get rid of the bifurcated court system, the...If you get rid of the bifurcated court system, there is no need for an in-depth examination of the application. Have a simple search and registration system. Any bad patents are identified during the litigation proceedings and the patentee pays the cost.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-91724004308850833422012-03-22T14:39:16.496+00:002012-03-22T14:39:16.496+00:00The real problem with European patents is the slow...The real problem with European patents is the slowness of the system. More rapid examination, appeal and opposition proceedings at the EPO would address the interests of patentees and third parties more than anything.<br /><br />Just because the politicians have been working on the unitary patent for decades does not mean they have or ever will produce anything other than an overly-bureaucratic and expensive dogs breakfast.<br /><br />I am happy to see it die a quick and painful death.<br /><br />I don't like bifurcation either.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25660322845315342052012-03-22T14:35:02.219+00:002012-03-22T14:35:02.219+00:00@Anonymous 1:44
Is then the feared UPCA-style bif...@Anonymous 1:44<br /><br />Is then the feared UPCA-style bifurcation different from the German-style bifurcation? <br /><br />If yes, would the UPCA cancel the risk of the "free hit" mentioned by you, even in a German local division of the unified patent court?Pay-Tentnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-89881195817719981812012-03-22T14:12:15.565+00:002012-03-22T14:12:15.565+00:00Well said that commenter, especially the last sent...Well said that commenter, especially the last sentence. It should be no surprise to anybody, why Germany is such a popular venue for holders of duly issued patent claims. With an injunction, you effectively win the game, and put the other fellow out of business, even if years later the asserted claim turns out never to have been valid. Being out of business, he's not going to be hounding you for compensation for the wrongly issued injunction, so it won't make any difference upping the quantum of compensatory damages if the injunction was wrong. Of course, the German folk memory is of the DPMA issuing only patents of cast iron validity but even with the dodgy stuff issuing from the EPO there is still this mantra about the validity of duly examined rights and the fundamental logic of the bifurcated system (which hides a reluctance to change anything, and a reluctance to admit that the bifurcated system is actually unfair, and not conducive to promoting the progress of useful arts).<br /><br />Everybody planning a market launch in Germany should make themselves aware of the Schutzschrift system. Before you launch, drop a line to each of the district courts dotted around Germany that handle patent infringement actions. Good practice for China.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65157384489694428922012-03-22T13:44:15.272+00:002012-03-22T13:44:15.272+00:00The problem with the bifurcated approach is that y...The problem with the bifurcated approach is that you can be on the receiving end of an injunction when the validity of the patent in suit has not been tested properly.<br /><br />In the US, defendants may request re-exams in parallel, but they are still (to my knowledge) permitted to raise invalidity challenges directly in defence of an infringement action. (A US lawyer may correct me on this, however.)<br /><br />Where German bifurcation currently has the worst effect is in the context of multi-jurisdictional electronics cases, particularly in the 'smartphone wars'. <br /><br />If one company is successful in getting an injunction granted against a competitor in Germany which would have the effect of shutting down its German service until the validity of the patent can be determined by either the Federal Patent Court or the EPO (German validity actions are stayed where an EPO opposition in underway), which may take several years, the company on the receiving end of the injunction inevitably has to either enter into a settlement under coercion or produce a 'work-around'. Given the bargaining power of someone who has been granted an injunction, the injunction may be leveraged into gaining a favourable settlement across all international jurisdictions. In the electronics sphere, unlike in the pharma world, it is completely unreasonable for a manufacturer to try and 'clear the way' before launching a product, due to the sheer number of patents which may potentially be asserted against any new product.<br /><br />This would be fine if electronics patents granted by the EPO were all of a high standard. Unfortunately they are not. To date, only one electronics patent has been found both valid and infringed by the English Patents Court. The validity of most of these patents would, however, go completely unchallenged by the German infringement courts. Under a bifurcated system, dodgy patents can be asserted pretty much with impunity, and the patentee gets a 'free hit' against a defendant. Conversely, where invalidity can be raised in defence (such as in England), many patentees would not even bother to raise an action in the first place, as the chances of successfully emerging from litigation with your patent intact and with a finding of infringement are reduced.<br /><br />People often say "if the bifurcated system is so bad, why do so many people choose to litigate in Germany?" The answer to this is simple; if you are a patentee and you can obtain an injunction without any risk of having your patent found invalid, of course you are going to choose to litigate in Germany.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-23277603011451719342012-03-22T11:32:07.525+00:002012-03-22T11:32:07.525+00:00Of course, also European patents can now be "...Of course, also European patents can now be "bifurcated" to a national court and to the EPO opposition divisionPay-Tentnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14350899991400267422012-03-22T10:39:44.645+00:002012-03-22T10:39:44.645+00:00Will somebody please call Nestle, whose Prometheus...Will somebody please call Nestle, whose Prometheus business just went down in flames at the Supreme Court of the USA. Perhaps Nestle can help the politicians of Europe to grasp how disastrous it would be for patent law in Europe to be set by the CJEU.<br /><br />As to bifurcation in Germany, it works well enough German on German (or German on Asian). It does not work well when Anglo-Saxon parties are involved. Let the Asians litigate in Germany and the Americans in England, and let each go to Holland when it is best. Let those jurisdictions vie with each other for the business. I can't think of anything that will improve justice faster, in patent disputes in Europe. We are getting there slowly: don't spoil it.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-27408766584499826922012-03-22T09:48:59.904+00:002012-03-22T09:48:59.904+00:00The bifurcation issue to me appears to be nothing ...The bifurcation issue to me appears to be nothing more than a tool for bashing the Germans with. In the US, defendants are more than keen to file a re-exam at the USPTO in the face of a pending infringement action, making the most of the varying standard required for determining patent validity. Both the US and Germany have bifurcated proceedings and seem to be able to manage the "problems" this causes.Anonymousnoreply@blogger.com