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UPC: Advocate General Bot, Philippe Cochet; the good, the bad and the ugly

As the readers will know, on 18 November 2014, Advocate General Yves Bot published his conclusions in cases C-146/13 and C-147/13, whereby he has proposed that the Court of Justice of the European Union (“CJEU”) reject the nullity actions filed by the Kingdom of Spain against Regulation (EU) 1257/2012 (Enhanced cooperation) and 1260/2012 (Translation arrangements) of 17 December 2012.  One of the legal grounds on which he based his conclusions in case C-147/13 is that, under European Union (“EU”) law, no principle of equality of languages exists.  If this is so, it is a matter of regret that the Advocate General’s  views on this principle did not reach his fellow French politicians who, b [...]

Patentability of biotechnology inventions: “O time thou must untangle this, not I. It is too hard a knot for me to untie”

Although Brian Cordery will try to have you believe that the title of this blog is borrowed from William Shakespeare’s Twelfth Night, it may well have been taken from the Report from the Commission to the Council and the European Parliament dated 14 July 2005 on Development and implications of patent law in the field of biotechnology and genetic engineering, where the Commission wrote that:

There is no immediate answer to the question of the patentability of embryonic pluripotent stem cells and indeed at this stage it would appear premature to come to a definitive conclusion. The Commission will continue to monitor developments in this area.”

No additional progress appears to have been made [...]

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 [...]

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 [...]

Will the new Spanish Patents Act introduce “protective writs” in Spain?

In September of 2013 the Spanish Patent and Trademark Office (“SPTO”) published a draft Patents Act, which will hopefully be approved by Parliament within the next few months, assuming that the election calendar so permits. During the last year, the draft has received numerous comments from the stakeholders concerned, including the Spanish competition authorities and the “General Council for the Judiciary” (“GCJ”), the administrative organ that governs the Spanish Judiciary.

One of the suggestions made by the GCJ at paragraphs 116-119 of its Report of 24 July 2014 has been the introduction of a procedure roughly equivalent to “protective writs.” In particular, the Report contains the followi [...]

Not accepting an undertaking entails an intention to market the allegedly infringing product

On 12 September 2014, the Barcelona Court of Appeal (Section 15) handed down a decision confirming a preliminary injunction preventing a Spanish company from marketing capsules claimed to be compatible with what is known as the Nespresso® system, which raises a handful of interesting legal points.

The first point of interest discussed was whether or not the appeal proceedings against the first instance decision which had ordered a preliminary injunction should be discontinued after the Court of First Instance (Barcelona Commercial Court number 5) handed down a judgment on the merits, upholding the infringement complaint.  After the judgment in the main proceedings came out, the complainant [...]

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