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Barcelona Court of Appeal publishes most surprising Judgment on pharmaceutical patents, the role of the CJEU, and Art. 70.7 of TRIPS

1. Introduction:

Over the last decade, in some of the countries that did not introduce patent protection for pharmaceutical products until 1992, there has been an intense debate which has included, inter alia, the following two questions: (i) whether or not under Articles 70.2 and 27.1 of TRIPS, a patent granted following an application claiming the invention both of the process of manufacture of a pharmaceutical product and of the pharmaceutical product as such, but granted solely in relation to the process of manufacture, does, by reason of the rules set out in Articles 27 and 70 of TRIPS, have to be regarded from the entry into force of that Agreement as covering the invention of that pha [...]

‘Pro-patent bias is a serious risk at the Unified Patent Court’

‘When all you have is a hammer, everything looks like a nail.’ At the EU Patent Package Congress in Brussels, organized on 17 October by the universities of Antwerp en Louvain attended by Kluwer IP Law, several speakers tackled the issue: is the creation of a specialized court for patent litigation necessarily positive?

For companies and innovation the answer, in theory, is yes. That’s why the Unified Patent Court (UPC) was created in the first place. Patent litigation would be centralized, and lawsuits in a large number of countries would no longer be necessary. Life was going to be a lot easier.

But specialization has its downsides too, critics in Brussels warned. The hammer metapho [...]

Spanish nullity actions against “unitary patent” Regulations: The CJEU, the procedures at the EPO and the impact on the Unified Patent Court Agreement

by Rechtsanwalt Dr. Ingve Björn Stjerna, LL.M., Certified Specialist for Intellectual Property Law, Düsseldorf. This article reflects the personal opinion of the author.

In Spain’s nullity proceedings against the “unitary patent” Regulations, Advocate General Yves Bot will shortly deliver his Statement of Position, i. e. his suggestions on how the Court should decide these matters. One of the many objections raised in these proceedings relates to the involvement of the European Patent Office (EPO), the procedures of which are criticized, amongst others, for lacking a sufficient level of legal protection. This aspect, which is also the subject of a number of constitutional complaints [...]

MSD v. Mylan: conflicting views

by Jan Pot and Ruprecht Hermans

MSD’s European Patent for treating baldness, EP 0 724 444 (‘EP 444’), has been the subject of a number of (in)validity decisions throughout Europe, with differing outcomes. The Dutch chapter in this saga is a decision of the District Court The Hague, which holds that – contrary to the German, French and Italian courts –the patent is valid and infringed.

Claim 1 of EP 444 is a Swiss-type claim for the use of finasteride for the preparation of a medicament for oral administration useful for the treatment of androgenic alopecia in a person and wherein the dosage amount is about 0.05 to 1.0 mg. Androgenic alopecia is a type of baldness occurring in men a [...]

Gemalto’s UK appeal dismissed

by Naomi Hazenberg and Brian Cordery

On Wednesday 22 October 2014, the Court of Appeal (Ref [2014] EWCA Civ 1335) has upheld Birss J’s decision last year in HTC v Gemalto (Ref [2013] EWHC 1876 (Pat)) but has found that he erred on a point of construction. The appeal concerned just one of the patents considered at first instance (EP (UK) 0932865) which relates to using higher level programming with a microcontroller. Only claim 3 (and its dependent claims) survived the attack on validity at first instance and HTC’s devices were held not to infringe.

At first instance, the judge needed to construe the term “microcontroller”. As it was not an expression used in ordinary English, expe [...]

‘Real discussion on Unitary Patent renewal fees has not started yet’

‘The unitary patent (UP) package is a strange animal.’ Margot Fröhlinger has no problem admitting that. As Principal Director Patent Law and Multilateral Affairs of the EPO she is closely involved in implementing the new patent system, which is expected to become operational in 2016. It is a complicated political compromise, based on both EPC rules and EU and national law. Although there are concerns about costs and the quality of the future Unified Patent Court (UPC), she is confident it is an important step forward for the European business sector.  Kluwer IP Law spoke with Fröhlinger at a UP Congress on Friday 17 October in Brussels.

What can we expect from the EPO Select Committee [...]

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