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Punitive damages in Europe? The ECJ will have a word on it!

The newly established 15th Patent Senate of the Appeals Court of Düsseldorf (Presiding Judge Dr. Ulrike Voß) has referred a number of questions concerning the calculation of damages in IP cases to the European Court of Justice. This opens the floor for the ECJ to talk about damages, as far as I know for the first time in IP matters.

In the case which now has been referred to the ECJ plaintiff had already successfully sued defendant for infringement of its plant variety protection right and now tried to collect damages for the past infringement on the basis of a reasonable royalty. In calculating the damages on this basis, plaintiff requested to take into account several factors which he [...]

Chairman Between the Chairs -The Decision of the Enlarged Board of Appeal R0012/19-

Almost everyday someone posts something about the Unified Patent Court or a seminar is offered about the “newest” developments. In fact nobody is able to predict whether the system will “work”. It is said that in order “to be successful” the system needs to be efficient, speedy and affordable. It is also said that it will largely depend on the qualification and experience of the future UPC judges whether the UPC will be accepted by its “customers”. While this is certainly true to some extent one should keep in mind that it is up to the lawmaker to provide the rules for the proceedings balancing efficiency with justice and -at least evenly important- to provide sufficient fund [...]

The EU Patent Package – Where does Europe stand End of June 2014?

1 Introduction

Reports that say there’s — that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things that we know that we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know.

Donald Rumsfeld, United States Secretary of Defense, 1975-1977 and 2001-2006

According to Article 89 of the Agreement on a Unified Patent Court (UPCA), the Agreement is set up to enter into force on one of three dates, whichever is the latest. The first date provided in the Agreement was 1 January 2014. As we all know, it did not h [...]

New Block Exemption Rules for Technology-Transfer Agreements

The European Commission has adopted new competition rules for the assessment of technology-transfer agreements. The revised Block Exemption Regulation for Technology-Transfer Agreements (EU) 316/2014 (“TTBER”), and the accompanying Guidelines (OJ, 2014/C 89/03) entered into force on May 1, 2014.

The general structure and most of the provisions have in substance remained unchanged compared to the previous Regulation TTBER 772/2004 (although the language was streamlined quite a bit). Some changes are, however, highly relevant for licensing practitioners. Some of them tighten the exemption, in particular regarding

- restrictions of passive sales to territories reserved for “new” licen [...]

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 [...]

The CJEU rulings of 30 January 2014 on TRIPS: If you don’t want to get the wrong answer, don’t ask the wrong question

On 30 January 2014 the Court of Justice of the European Union (“CJEU”) handed down two Decisions in response to two preliminary rulings sought by the same Greek Court that referred the questions answered by the CJEU in its Judgment of 18 July 2013 (Case C‑414/11, Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon). In this case, the Greek Court, which was hearing a matter involving a patent that had been granted on 21 October 1986, sought the guidance of the CJEU on whether under Articles 27 and 70 of the TRIPs Agreement a patent protecting a process to obtain a pharmaceutical product would protect the product as such after t [...]

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