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Patentability of biotechnological inventions before the CJEU – A narrower construction of the “no-go zone” than in Brüstle or simply different facts?

On 17 July 2014, Advocate General Pedro Cruz Villalón issued his opinion in Case C-364/13 International Stem Cell Corporation v. Comptroller General of Patents, whereby he proposed that the Court of Justice of the European Union (“CJEU”) give the following response to a question referred by the High Court of Justice, Chancery Division (Patents Court), of England and Wales regarding the meaning of “human embryos” in article 6(2) (c) of Directive 98/44/EC: “Unfertilised human ova whose division and further development have been stimulated by parthenogenesis are not included in the term “human embryos” in article 6(2) (c) of Directive 98/44/EC of the European Parliament and of the Council of 6 [...]

The Draft of the new Spanish Patent Act: utility models for chemical inventions. But also for pharmaceutical inventions?

One of the most salient aspects of the draft of the new Spanish Patent Act which Spain’s Parliament will be discussing in the coming months is the dramatic modification of the legal regime governing utility models. Although there were rumours that the Spanish government would perhaps eliminate them from the new draft (since within some circles they are considered a bit of an anachronism), in reading the draft finally approved by the Council of Ministers, it transpires that utility models are here to stay. The new provisions introduced in the draft affect mainly the relevant state of the art, the type of inventions which can be protected via a utility model and the conditions for enforcing th [...]

Enhanced cooperation: which will prevail in Luxembourg, law or politics, on 1 July?

1 July appears to be a date prone to attract landmark historical events. On 1 July 1751, for example, the first issue of Denis Diderot & Jean Le Rond d’ Alembert’s Enciclopedia was published in Paris. On the same day, 47 years later Napoleon Bonaparte invaded Alexandria. It was also on 1 July when the III modern Olympic Games were launched in St. Louis in 1904. And it will be another 1 July, this time in 2014, when the Court of Justice of the European Union (“CJEU”) will meet in Luxembourg to hear the action brought on 22 March 2013 by the Kingdom of Spain (“Spain”) against the European Parliament and the Council of the European Union (Case C-146/13), a dark cloud on the horizon of the Europ [...]

From “in foro interno, in foro externo” to “non foro interno, in foro externo”: Is the CJEU constructing the patent house from the roof down?

Those who embraced a deceptive feeling of easiness when they saw Articles 6 – 8 vanish from the text of Regulation (EU) Nº 1257/2012 of the European Parliament and the Council of 17 December 2012 will feel uneasy upon revisiting the judgment of 18 July 2013 (Case  C-414/11 “Daiichi”) from the Court of Justice of the European Union (“CJEU”). If you thought that the Monster was over and done with (rather ironically, the first patent in history was granted to a monster, i.e., Il Badalone), please read this judgment carefully and you will see the first gremlins popping up. The stubborn stance taken by the European Union (“EU”) Commission in that case, aimed at stealing the Member States’ com [...]

A manufacturer may be a manufacturer even if it does not manufacture

Commercial Court number 5 of Barcelona recently handed down a judgment dated 28 March 2014 ordering a defendant to cease manufacturing and marketing coffee capsules that are compatible with Nespresso®’ s machines. The judgment also ordered the defendant to pay damages, namely, 107,641.35 euros plus costs to the patentee.

One of the interesting issues discussed in the case was whether or not the defendant could be considered a “manufacturer” in a legal sense. The relevance of this debate stemmed from the fact that according to Article 64.1 of the Spanish Patents Act, manufacturers and importers are subject to a “strict” liability standard. In contrast, according to Article 64.2, other actors [...]

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 [...]

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