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Proprietor’s Plea of Ply Patent Prevails (or: The Problem with the Problem, Part II)

by Anne Katrin Schön

On 12 June of this year, the German Federal Court of Justice (FCJ) in Karlsruhe concluded nullity appeal proceedings (X ZR 96/11) against the German part of European patent EP 1 071 556 B1 by dismissing the nullity action and upholding the patent as granted. Overruling the first-instance judgment 1 Ni 19/09 of the Federal Patent Court (FPC), with which the patent had been declared null and void in its entirety, the FCJ confirmed principles of established case law both regarding novelty and inventive step. Prior to the German nullity proceedings, the European Patent Office (EPO) had rejected an opposition against the patent. A comparison between the EPO, FPC and FCJ deci [...]

The Preparatory Committee on the opinion on the Spanish challenge of the Unified Patent Court: ‘It couldn’t be much better’

The Preparatory Committee of the Unified Patent Court (UPC) is very satisfied with the opinion of the Advocate General (AG) of the European Court of Justice (CJEU) on the Spanish challenge. As chairman Paul van Beukering commented to Kluwer IP Law, ‘It couldn’t be much  better than this.’

According to Van Beukering, the recent opinion of AG Yves Bot, who on Tuesday 18 November proposed that the CJEU should dismiss Spain’s actions (cases C-146/13 and C-147/13), is in line with the argumentation that had been put forward by Member States of the UPC Agreement. ‘Of course, we will have to wait for the decision of the CJEU itself, but this is a very promising step.’ The court’s dec [...]

Advocate General proposes CJEU to dismiss Spain’s actions against the Unitary Patent Regulations

The first actions of Spain and Italy against the decision of 25 EU member states to use the system of “enhanced cooperation” for the unitary patent package were rejected by the Court of Justice of the European Union (CJEU) on 16 April 2013. One month earlier, Spain had launched on 22 March 2013 two new actions (C-146/13 and C-147/13) against the Unitary Patent Regulation (1257/2012) and the Translation Regulation (1260/2012).

On 18 November 2014, the two Opinions of the Advocate General Yves Bot regarding the actions of Spain were published. In his Opinions the Advocate General proposes the CJEU to dismiss the respective actions against the Unitary Patent Regulations.

In the Opinion re [...]

On the fence of Article 27(k) of the UPC: The software interoperability “limitation”

Software interoperability seems to be at the heart of any discussion to how to protect computer programs lately. Recent cases such as Oracle v. Google before the US Supreme Court, and SAS v. WPLtd before the Court of Justice of the European Union (CJEU) have probably something to do with it. The truth is that software interoperability has always been a matter of concern in the ICT sector. Especially since the international community agreed upon protecting computer programs as literary works – by means of copyright – and accepting both source code and object code as valid forms of expression (Article 10(1) of the TRIPS Agreement). But this is matter for another debate. Interoperability cons [...]

UPC: Why has the Preparatory Committee thrown expressions of interest sent by Spanish candidate judges into the bin?

As readers will no doubt be aware, earlier this year the Preparatory Committee of the Unified Patent Court (“UPC”) drew up a short-list of candidate Judges after selecting them from an overwhelming raft of more than 1300 applications. This author knows of at least one Spanish candidate Judge whose expression of interest was discarded on the grounds that Spain is not a “signatory” state. Is this really a sound legal reason to throw the applications sent by Spanish candidate Judges into the bin? In my respectful view, it is not.

The reason is that according to the “Call for Expression of Interest” published by the Preparatory Committee in September 2013, one of the prerequisites was to be a na [...]

‘There are no disadvantages to the Unitary Patent’

There are no disadvantages to the Unitary Patent package, as it is an optional system. Willem Hoyng, lawyer of Hoyng Monegier and member of the Legal and the Expert Panel of the UPC Preparatory Committee, wrote this in a paper made available to Kluwer IP News.

willem hoyngIf companies don’t want to put all their eggs in one single Unitary Patent basket, fearing they may lose a patent for the whole UP territory in revocation proceedings, other options are possible. They can choose to file nationally or – during a transition period of seven or possibly even fourteen years – to opt out of the UPC court system, Hoyng argues. He thinks too much emphasis is put on the risk of losing a patent under the UPC: [...]

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