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Claim to Priority Allowed Despite Generalization of Invention

In its recent decision “Communication Channel” (“Kommunikationskanal”) of 11 February 2014, docket, X ZR 107/12, the FCJ decided that the priority of an earlier application may be claimed if the technical instructions described there by means of an example or in other ways appear for the skilled person as an embodiment of the more general teaching described in the later application, and this teaching, in the generality exposed by the later application, can already be taken from the earlier application as belonging to the filed invention.

In this new decision the FCJ has ruled on the question of when it is admissible to generalize a teaching and still remain within the confines of the [...]

Can a basic patent be amended under Art. 138.3 EPC to overcome a nullity action brought against its SPC?

The messy case law from the Court of Justice of the European Union (“CJEU”) on supplementary protection certificates (“SPC”) that protect “combinations” of pharmaceutical products has left many patentees that relied in good faith on the criteria laid down by the CJEU in the judgment of 16 September 1999, Case C-392/97 (“Farmitalia”) with patents whose claims are not totally aligned with the new criteria laid down in the judgment of 24 November 2011, Case C-322/10 (“Medeva”), and the ensuing saga. Readers will remember that in Farmitalia the CJEU responded that it was not for the CJEU but for national courts to determine whether or not a product is protected by the basic patent. This was cohe [...]

Declaration on Patent Protection published under the auspices of the Max Planck Institute for Innovation and Competition

Under the auspices of the Max Planck Institute for Innovation and Competition (Munich) 40 researchers from 25 countries passed a “Declaration on Patent Protection”. This declaration was published in connection with the 20th anniversary of the TRIPs Agreement.

The authors of the declaration state that over the past decades, the autonomy of nation states to design their patent regimes has been progressively eroded by multilateral, regional and bilateral agreements, which are becoming increasingly complex and set more and more limits to the states’ regulatory freedom. According to the authors, the ability of national legislators to maintain a proper balance between the need for protection [...]

Hospira clears the way for generic Herceptin

The development of Herceptin (trastuzumab) in the late 1980s and 1990s is one of the most remarkable advances in the treatment of breast cancer. The story of the drug and its pioneer, the “velvet jackhammer”, Dennis Slamon, is neatly summarised in Siddhartha Mukherjee’s award winning novel: “The Emperor of All Maladies – a Biography of Cancer” – a fascinating if not necessarily uplifting read.

In short, unlike traditional chemotherapy, trastuzumab is a monoclonal antibody which specifically targets a receptor known as HER-2 which is involved in the development of breast cancer. No-one disputes that the development of Herceptin was a landmark advance in the field of oncology – [...]

Implications Of The Proposed USPTO Attributable Owner Rules

Pursuant to a U.S. White House initiative aimed at addressing the “challenges from Patent Assertion Entities (PAEs)” and stemming the economic drain of meritless patent litigation, the USPTO has issued propose rules to require patent applicants and patent owners to disclose patent ownership information during and after patent prosecution and during any Patent Trial and Appeal Board proceedings. Written comments on the proposed rules are due by April 24, 2014 (extended from the original March 25 deadline). While many patent offices require disclosure of the entity entitled to pursue a patent, the proposed USPTO Attributable Owner rules could go much farther, and could be difficult and costl [...]

German Court is Soothsaying What the Future will Bring for FRAND and Compulsory License Defenses

by Dr. Simon Klopschinski

In one of its latest orders the Karlsruhe Higher Regional Court has used the opportunity to take a glimpse into the crystal ball, in order to see what decision the Court of Justice of the European Union (CJEU) is going to render in response to the pending referral for preliminary ruling regarding the FRAND and compulsory license defense in case of standard essential patents (SEPs).

In recent years the information and telecommunication (ITC) sector has seen a wave of patent lawsuits in various jurisdictions, including Germany. Since most of the patents asserted in these proceedings form part of a standard, a core questions is whether enforcing SEPs complies with anti [...]

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