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Decision in Spanish challenge of Unitary Patent Package on 5 May 2015

The crucial decision of the European Court of Justice (CJEU) on Spain’s objections to the Unitary Patent Package will be delivered on 5 May 2015. The date was published on the CJEU’s website earlier this week.

CJEUThe decision could remove what is widely seen as the last major stumbling block for the creation of the Unitary Patent (UP) and the Unified Patent Court (UPC). Spain seeks annulment of two regulations forming part of the Unitary Patent Package: Regulation No 1257/2012, on the creation of unitary patent protection conferred by a patent  and Regulation No 1260/2012, governing the applicable translation arrangements. Spain argues the language regime disfavors those who don´t have En [...]

The Judgment of 12 March 2015 of the CJEU in Actavis v. BI: is the “subject-matter of the patent” test crafted by the AG in Medeva to replace the “core inventive advance” test?

On 12 March 2015, the Court of Justice of the European Union (“CJEU”) published the judgment announced in our last blog in Case C-577/13, in response to some of the preliminary questions referred by the High Court of Justice (England and Wales), Chancery Division (Patents Court) in a case between Actavis Group EHF, Actavis UK Ltd (“Actavis”) and Boehringer Ingelheim Pharma GmbH & Co. KG. (“BI”).  The facts of the case before the referring Court may be summarised as follows:

Background of the case:

On 9 August 1999, BI was granted a Supplementary Protection Certificate (“SPC”) for Telmisartan based on a marketing authorisation for Telmisartan granted on 16 December 1998 and patent EP (UK) 50 [...]

Mollusc patent litigation: going back in time

For those who thought that patent litigation was only relevant for big pharma or cutting-edge telecom devices, it may be of interest to learn about a relatively recent judgment from the Court of Appeal of A Coruña that has resolved a fierce dispute around patents protecting mollusc cleaning machines. A Coruña is one of the main cities on the coast of Galicia, one of the gastronomic paradises of European seafood lovers. So it is not surprising that the dispute revolved around four machines that the defendant had acquired for the purpose of cleaning molluscs.

In its judgment of 11 September 2014, the Court of Appeal of A Coruña dismissed the appeal filed by the owner of two patents that pro [...]

The Advocate General on the Spanish “unitary patent” challenges: A Statement of (Op-)position

 By Rechtsanwalt Dr. Ingve Björn Stjerna, LL.M., Certified Specialist for Intellectual Property Law, Düsseldorf. This article reflects the personal opinion of the author.

On 18 November 2014 Advocate General Yves Bot delivered his Statements of Position (afterwards “Opinions”) in terms of Spain’s nullity actions against the two Regulations on the “unitary patent”, his recommendation to the CJEU being a rejection of the complaints. Upon a closer examination, the impression arises that especially the Opinion in case C-146/13 largely tries to avoid any contextual debate of the critical aspects raised, e. g. in relation to the adequacy of legal protection at the European Patent Of [...]

Recent judgment from Court of Appeal of Navarre illustrates that launching at risk can be a painful gardening experience

Many readers, particularly those based on one of the islands to the Northwest of the Canal de La Manche, will remember the famous metaphor used by then Justice Robin Jacob in his Decision of 23 October de 2001 (paroxetine):

The defendants could, so soon as they settled upon the product they were intending to sell, have caused the litigation to start. They could have done a number of things: First, they could have launched a petition for the revocation of the patent and started a claim for a declaration of non-infringement. Or, since there are certain difficulties with the latter (for example onus of proof goes the other way round), they could simply have said to the patentees, “We intend (w [...]

Barcelona Court of Appeal publishes most surprising Judgment on pharmaceutical patents, the role of the CJEU, and Art. 70.7 of TRIPS

1. Introduction:

Over the last decade, in some of the countries that did not introduce patent protection for pharmaceutical products until 1992, there has been an intense debate which has included, inter alia, the following two questions: (i) whether or not under Articles 70.2 and 27.1 of TRIPS, a patent granted following an application claiming the invention both of the process of manufacture of a pharmaceutical product and of the pharmaceutical product as such, but granted solely in relation to the process of manufacture, does, by reason of the rules set out in Articles 27 and 70 of TRIPS, have to be regarded from the entry into force of that Agreement as covering the invention of that pha [...]

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