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European (Unitary) Patents and changing borders

Secessionist pressure grows in Catalonia, after regional elections on 27 September 2015 (qualified as an informal referendum on independence) were won by supporters of an independent Catalonia. In Scotland supporters of independence have been far from silenced since they lost a referendum on the same issue last year.

Kluwer IP Law found the following article by Francisco Moreno, Head of the SME Legislation and Policy Area in the Spanish Ministry of Industry, Energy and Tourism, on his (Spanish language) personal blog interesting in this respect of changing borders.

By Francisco Moreno

What happens to patents when a state falls apart (Czechoslovakia, USSR, Yugoslavia), [...]

‘The Unified Patent Court is an opportunity to build excellent quality’

‘Europe can become a more attractive forum for patent enforcement than the US’, according to Wouter Pors, partner of Bird & Bird. Kluwer IP Law interviewed him about the new draft proposal for the Rules on the European Patent Litigation Certificate and other appropriate qualifications. ‘We shouldn’t just focus on the minimum requirements.’ Pors expects the Unified Patent Court to start functioning mid-2016.

unified patent courtWhat are the most striking changes compared to the first draft?
‘The most important change is Article 16 section 3, which introduces disciplinary removal from the list of representatives upon a decision by a competent authority. This matches the ongoing development of a Code [...]

EPO: R16/13 (Boehringer v. Norton), Board of Appeal, 8 December 2014

The enlarged board of appeal of the European patent office allowed a petition for review of a board decision because the right to be heard had been denied. The decisive ground for the decision under review involved a new conclusion from a document that was in the proceedings. This conclusion could not be directly derived from submissions of the parties or notice from the board. The fact that the proprietor expressed a different opinion on the document, without notice of challenge from the opponent or the board, showed a denial of the right to be heard on the new conclusion.

A full summary of this case has been published on Kluwer IP Law.

EPO: T1267/10 (DeLaval v. Octrooibureau Van der Lely), Board of Appeal, 20 April 2015

An EPO board held that an appellant in a cross-appeal can be bound by an analogy of the bar against reformatio in peius, when filing a request later than with the grounds of appeal. When the appellant could have filed the request with the grounds of appeal, but filed the request only in response to the grounds of appeal of the cross-appellant, the appellant effectively only had the rights of a respondent and the bar against reformatio in peius applied analogously.

A full summary of this case has been published on Kluwer IP Law.

EU: Huawei v. ZTE, Court of Justice of the European Union (CJEU), C-170/13, 16 July 2015

The CJEU decided on a referral by the District Court Düsseldorf  with regard to the interpretation of Art. 102 TFEU in the context of patent infringement actions regarding standard essential patents (SEPs). The Court held that the owner of an SEP who seeks injunctive relief against an alleged infringer does not abuse a dominant position resulting from the fact that the patent is an SEP as long as certain requirements are met. Furthermore, Art. 102 TFEU does not prohibit the proprietor of an SEP from bringing an action for infringement against the alleged infringer seeking remedies for past acts of use of that patent.

A full summary of this case has been published on Kluwer IP Law.

Finland: Should interim injunction decisions for utility models follow patents? (MAO:434/15, 18 June 2015)?

Inspired by several Finnish companies, like many other interest groups, having expressed their concern regarding the level of renewal fees of the Unitary Patent, I thought of writing about a slightly different protection regime that provides not only fast but also low-cost protection for technical inventions, namely, utility models. First I have a question for all of you interested in IP enforcement and interim injunctions: do you think that interim injunctions in cases involving utility models should be granted on grounds and standards different to those applicable to patents? If you do not have a view on this, see what the Finnish Market Court considers and as we will see the main emphasis [...]

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