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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
The use and circulation of a product which has been put on the market by the patentee or a third party acting with the consent of the patentee (e.g. a licensee) cannot be prohibited by the patentee anymore. This concept of exhaustion is not only applicable to the territory of Germany, but to the entire territory of the EU and EEA, i.e. the common European market. This Europe wide exhaustion of patent rights is the basis for parallel imports, in particular for parallel imports of pharmaceuticals and plant protection products.
Being a defense, the burden of prove showing that the product has been put onto the market by the patentee or a licensee lies with the defendant. However, applying this [...]