tag:blogger.com,1999:blog-5574479.post7783985900762488860..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: More on the Unitary Patent - Two Misconceptions and One UncertaintyVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-5574479.post-14767930163803915362013-09-24T13:18:56.032+01:002013-09-24T13:18:56.032+01:00An interesting aspect of the unclear status of Bri...An interesting aspect of the unclear status of British Overseas Territories with respect to patent legislation regards international patent applications: according to Art. 9(1) PCT, "any resident or national of a Contracting State may file an international application." Now, individual citizens of BOTs are British nationals. However, companies incorporated in BOTs are <b>not</b> resident in the UK, and, AFAIK, there are no BOTs among the PCT Contracting States. Therefore, at least in principle, such offshore companies should not be able to apply for international patent applications on their own (although I guess the problem is usually circumvented by designating the inventors as applicants for the US)...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77879619390412247542013-09-21T03:55:32.968+01:002013-09-21T03:55:32.968+01:00Applicant files EP application A1.
A1 is "di...Applicant files EP application A1.<br /><br />A1 is "divided" into A2 in due time.<br /><br />A1 proceeds to grant, and applicant elects the community patent.<br /><br />A2 eventually proceeds to grant with the same claims as A1 (or at best, with a token difference). Applicant chooses the classical EP bundle of patents (each of which being equivalent to a national patent). Since each application is independent, and the CP wouldn't be implemented in the form of a designation decided at the outset, it should be possible to choose a different path for either application.<br /><br />There are no real impediment to double patenting before the EPO, and in most EP states either.<br /><br />The possibilities are somewhat frightening, isn't it?Roufousse T. Fairflynoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22177146217770134342013-09-20T23:11:15.177+01:002013-09-20T23:11:15.177+01:00Interesting comments re. the Isle of Man. As far a...Interesting comments re. the Isle of Man. As far as I can see:<br />1) their will be no unitary protection, as the regulations can not be applied<br />2) the UPC will apply in the Isle of Man as it the territorial scope the UPC is that of the European patent is the scope as defined in the European Patent Convention (note however: the UPC is careful not to define the territorial scope of the unitary patent!)<br />3) the same will hold for Curacao, Sint Maarten and the Caribbean Netherlands with regards to ratification of the Netherlands<br />===<br />So if no unitary protection is chosen, things are clear and the Isle of Man is in, but if unitary protection is effected, then<br />a) the EP (UK) or EP (NL) patent should not effect <br />b) as this requirement stems from the regulation (not the UPC agreement) it does not apply to the Isle of Man<br />c) the UK therefore would be free to grant a EP (UK) patent of the Isle of Man (or at least not regard it not having taken effect there)<br />d) [and this is pure speculation!] in view of the small size of the jurisdiction and in conformation with the spirit of the unitary patent, the UK could also make law deeming a EP (UK) patent to be automatically granted for free upon the registration of a unitary patent. That would at least give rise to full protection there; and a uniform regime with regards to revocation (however licensing of a unitary patent is not a license for the isle of man etc…)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48372248983301303012013-09-20T11:06:42.062+01:002013-09-20T11:06:42.062+01:00This Article 4(2) might cause problems with regard...This Article 4(2) might cause problems with regard to registering EP(UK) patents in Gibraltar. If as a result of registration, the UK part does not exist, how do you register your rights in Gib.?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65105611435706519012013-09-20T08:58:04.938+01:002013-09-20T08:58:04.938+01:00I am not sure that the comment 19/9/2013 14:49 and...I am not sure that the comment 19/9/2013 14:49 and my original comment on the Isle of Man are addressing the same issue. It seems to me clear that the UK legislature is not for one moment INTENDING to create a Manx lacuna and the legislation will purport to cover Manx infringement. The issue I was questioning was how that works in practice? I would be very wary, as an investor, about any assumption that there will in fact be a hole. Plus, it will take a long time to find out one way or another given that the decision will end up with the ECJ (so that's 10 years down the drain) and meantime I would not rule out a Manx interim protective order and/or parallel precautionary proceedings in the Manx courts paralleling any UPC decision. As a business, I would not be risking an investment in Man based on any assumption that it would be patent-free, because there will be no certainty for a long time and the end result will very probably go against me. But that doesn't alter my interest in understanding what the basis for that protection is going to be.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-91287980734101686922013-09-19T14:49:23.242+01:002013-09-19T14:49:23.242+01:00Re Wednesday, 18 September 2013 15:25, point 2.
...Re Wednesday, 18 September 2013 15:25, point 2. <br /><br />Good spot there. <br /><br />Watch this space for international companies setting up their European supply, distribution and release hubs in the Isle of Man. <br /><br />It happened with Malta (as duly aided and abbetted by the Maltese Government which encouraged this a number of years ago), and once that loophole closes (i.e. companies will cease to forget about Malta when deciding on European patent coverage) then companies will be looking for other options. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50984576989639564262013-09-19T14:26:18.972+01:002013-09-19T14:26:18.972+01:00I believe it was the case pre-London Agreement (w...I believe it was the case pre-London Agreement (when Section 77(6) still had effect) that failure to comply with 77(6) meant that your EP(UK) was always void but did not prevent 73(2) from applying because the EP(UK) had still granted. That is if you failed to validate an EP designating UK, rather than positively withdraw the GB designation before grant, the corresponding UK patent would still be revoked.<br /><br />By the same logic "deemed not to have taken effect as a national patent" does not necessarily mean that it is deemed not to have granted. At face value an EP that grants designating the UK will result in 73(2) kicking in and the UK subsequently being revoked, and whether unitary effect is later registered in the Register for unitary patent protection should not make any difference.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-85891919264552096112013-09-19T09:33:44.194+01:002013-09-19T09:33:44.194+01:00It SHOULD be mandatory after a certain time. It SHOULD be mandatory after a certain time. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32033883388547439302013-09-18T15:25:29.115+01:002013-09-18T15:25:29.115+01:00Darren, two small comments:
1. "Other count...Darren, two small comments:<br /><br />1. "Other countries have similar prohibitions on double patenting as between a national patent and a European patent." - true, but just to be accurate there are others that do not. Denmark, for instance, allows parallel protection and this is an important point because national Danish protection extends to Faroes and Greenland whereas EU(DK) does not. If double patenting were not allowed then it would be impossible to maintain protection in Greenland while pursuing a UPC-compatible protection. <br /><br />2. I'd like to understand the basis for UPC jurisdiction especially under a unitary patent over the Isle of Man, given that it is not part of the EU but that PA77 extends there and there are apparently no plans to change the jurisdictional extent. How does that work? Anonymousnoreply@blogger.com