tag:blogger.com,1999:blog-5574479.post8157999566499661412..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Unified Patents Court - One Hurdle Cleared; Many more to go...Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-5574479.post-22576229641726419222013-12-11T21:13:20.964+00:002013-12-11T21:13:20.964+00:00Dear Roufousse.
What the UPC has competence over ...Dear Roufousse.<br /><br />What the UPC has competence over (ie the answer to your question about the definition of "litigation", I think) is in Article 32 of UPC agreement. 1(f) states:<br /><br />"actions for damages or compensation derived from the provisional protection conferred <br />by a published European patent application"<br /><br />So provisional protection is definitely part of the remit. But the rules I think envision only this as part of the calculation of damages (see Rule 125 of the draft Rules of Procedure). <br /><br />I cannot find anything that says explicitly whether or not an action can be begin before grant of a patent, and, if so, what happens.<br /><br />A lot of us are talking about money, even publicly, but the problem is we don't have any facts yet!<br /><br />Best wishes<br /><br />DarrenDarren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-44404885736418054452013-12-11T18:36:46.685+00:002013-12-11T18:36:46.685+00:00Oops, sorry, I was looking at the wrong document. ...Oops, sorry, I was looking at the wrong document. Entitlement isn't part of the <a href="http://www.theunitarypatent.com/what_is_the_structure_of_the_unified_patent_court" rel="nofollow">UPC</a>.Roufousse T. Fairflynoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-13803163412636116962013-12-11T17:36:15.273+00:002013-12-11T17:36:15.273+00:00Thanks, I wasn't sure if this question of mine...Thanks, I wasn't sure if this question of mine wasn't an idle one.<br /><br />I know that pre-grant enforcement is extremely rare, if only that the vast majority of applications are not in order for grant at their publication, and that applicants are not keen in drawing too much attention before the opposition delay runs out. Those who are get granted pretty quickly anyway.<br /><br />I believe that Art. 67 found its way into the EPC to mirror the practice which developed in Germany in the 1960s. Prosecution delays were quite long (what's new?), and pending applications weren't published systematically, so applicant got into the habit of filing parallel Gebrauchsmuster (petty) patents, providing provisional rights. This clogged even more the DPA. Provisional rights under the EPC are roughly equivalent to those of a petty patent: the scope of protection is determined a posteriori.<br /><br />If the UPC could actually be seized prior to grant, then there might be another potential problem, as I can't see anything in the <a href="http://documents.epo.org/projects/babylon/eponet.nsf/0/889924E4E28C5D0CC12578D3003F5046/$File/st11533_en.pdf" rel="nofollow">draft UPC agreement</a> excluding the questions of entitlement from its purview.<br /><br /><i>Article 1 Unified Patent Court<br /><br />A jurisdictional system for the settlement of <b>litigation related</b> to European patents and European patents with unitary effect is hereby established. To this end, the Unified Patent Court is created<br /><br /><br />The Unified Patent Court is a court common to the Contracting Member States of <b>exclusive competence</b> on their territories for European patents with unitary effect and European patents. </i><br /><br />Where is "litigation" defined? I would expect wording carving out Articles 60+61 EPC and the <a href="http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ma4.html" rel="nofollow">Protocol on Recognition</a>. Or is this implicit?<br /><br />And there is still no public discussion about the 800 lb. gorilla, i.e., money.Roufousse T. Fairflynoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-69737468199256902542013-12-11T14:15:56.047+00:002013-12-11T14:15:56.047+00:00There is absolutely no evidence (at all) to suppor...There is absolutely no evidence (at all) to support the commission's statement.Ashley Roughtonhttps://www.blogger.com/profile/11867564640201688641noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-29231536357872693152013-12-11T09:31:26.783+00:002013-12-11T09:31:26.783+00:00Ron: Interesting.
If the defendant is attacked in...Ron: Interesting.<br /><br />If the defendant is attacked in UPC based on a pending application, do you think he can rely on Ireland law and ask that the action be dismissed ?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60952541828823843482013-12-11T00:40:41.880+00:002013-12-11T00:40:41.880+00:00According to the EPO's most useful booklet &qu...According to the EPO's most useful booklet "National Law relating to the EPC", in addition to the UK, the only states which are explicitly stated to only allow action to commence after grant, are Ireland, Romania, Slovenia, Switzerland/Leichtenstein, and Bosnia-Herzegovina. <br /><br />States whch allow action to be initiated befire grant, but stayed until after grant, are Cyprus, France, Greece, and Hungary. <br /><br />The entries for the remaining states confirm that action may be taken, generally for reasonable compensation only, but are silent regarding when action may be commenced or stayed.ronnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37929747319135511502013-12-10T08:30:57.116+00:002013-12-10T08:30:57.116+00:00Dear Roufousse, thank you for your comment. I am ...Dear Roufousse, thank you for your comment. I am a Robot has pointed to the legislative answer to your question. Conceptually, the point is that the UPC has exclusive jurisdiction over BOTH bundle European patents as well as Unitary patents. So even though the patent may only become unitary after grant, the UPC is competent pre-grant. The exclusive jurisdiction over bundle European patents subject to a transitional period where it is not exclusive (shared with national courts) and capable of being opted out from; this does not apply to Unitary patents for which the jurisdiction is truly exclusive.<br />My understanding is that most countries do not allow an action to begin until after grant in any case - certainly that is the UK practice. Even where legally possible, I think that actions based on a pending application, while that application is pending, are rather rare. But it is interesting to consider what the approach of the UPC will be - I suppose we shall have to wait to find out. I do not recall seeing anything so far specifically about this point. Maybe our other readers may know.<br />DarrenDarren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-79534462449639292382013-12-10T07:59:15.825+00:002013-12-10T07:59:15.825+00:00ARTICLE 32 UPC
Competence of the Court
(1) The ...ARTICLE 32 UPC<br /><br />Competence of the Court <br /><br />(1) The Court shall have exclusive competence in respect of:<br /><br />[...]<br /><br />(f) actions for damages or compensation derived from the provisional protection conferred<br />by a published European patent application; I'm a robotnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-57806903857060015972013-12-09T19:57:12.286+00:002013-12-09T19:57:12.286+00:00How may people reading this will conclude that the...<i>How may people reading this will conclude that there will be no change at all in the procedure from application up until grant, </i><br /><br />What about provisional rights under <a href="http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ar67.html" rel="nofollow">Article 67</a> EPC?<br /><br />Where should one apply for provisional relief against the alleged infringement of a still pending EP application?<br /><br />The venue would be IMO the competent national court under the existing regime, since the UPC's responsibility would only begin after grant upon being elected.<br /><br />Would you have to run two separate sets procedures for recovering both pre-grant and post-grant damages? <br /><br />Roufousse T. Fairflynoreply@blogger.com