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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 [...]

No Mercy: Exhaustion of patent rights and burden of proof

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 [...]

The Unified Patent Court and the Transitional Regime Controversies

In our previous blog Opting out and Opting in we discussed some of the questions regarding the transitional regime under the Unified Patent Court Agreement (UPCA). Due to its importance and ambiguity this provision continues to be a source of considerable controversy, so much so that the Preparatory Committee, which is tasked with preparing the establishment of the court, issued an Interpretative Note on January 29, 2014.

The Interpretative Note addresses the substantive law to be applied by the national courts once the UPCA has entered into force. As it also acknowledges, the Note has merely persuasive authority. The national courts will have to decide which law to apply. The Note is there [...]

Düsseldorf strengthens its position as a venue for patent infringement litigation – Second Patent Senate at the Higher Regional Court started its work in 2014

by Hetti Hilge

The Higher Regional Court Düsseldorf has set up a second Senate (panel of judges) that is specifically competent for patent infringement litigation. The Higher Regional Court is the appeal instance for first instance judgments of the Regional Court Düsseldorf in patent cases.

Already at the beginning of 2013, a third civil chamber that is specifically competent for patent infringement cases has been set up at the District Court Düsseldorf as a result of the increasing number of patent infringement complaints at this venue (see our previous post on the announcement). With about 600 cases per year, the District Court of Düsseldorf is the most popular court for patent infrin [...]

New Regulation on Customs Action as of 1 January 2014: In a Nutshell, Important Changes in View of Patent Rights

On 1 January 2014 the New Regulation (EU) No 608/2013 concerning customs enforcement of intellectual property rights will enter into force. Patent practitioners should note that national utility models and future unitary patents are also covered by this new Regulation. The “simplified proceedings” which have allowed customs to destroy goods without a prior court decision have now been stipulated as “basic proceedings” in this Regulation and are to be applied with regard to all IP rights including patents and utility models. Should there be an objection, court proceedings will basically have to be filed to prevent the release of the goods. One pitfall that this new Regulation provide [...]

SPCS: ECJ leaves Medeva behind after correcting its own clumsy transcription of Commission’s 1990 explanatory memorandum

As my colleague Rik Lambers, from Brinkhof, reported in the blog he posted last Thursday (12 December 2013), that day was a big day for Supplementary Protection Certificate (“SPC“) aficionados, since the European Court of Justice (“ECJ“) published three new judgments that will further feed the long-running saga of SPC decisions. Readers will no doubt have heard that for the good of legal certainty, the ECJ clarified what it meant when in the judgment of 24 November 2011 (Case C-322/10, Medeva BV v. Comptroller General of Patents, Designs and Trade Marks, “Medeva“) it wrote that “article 3(a) of Regulation (EC) No. 469/2009 of the European Parliament and the Council of 6 May 2009 concerning t [...]

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