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New EPO proposals for renewal fees Unitary Patent: will SMEs kill innovation?

In March 2015 the European Patent Office presented two proposals to the Select Committee for the level of renewal fees of the future Unitary Patent. The proposals were presented as the “Top 4” and “Top 5” models, i.e. equivalent to the national renewal fees of the 4, respectively 5 Member States where European patents are most frequently validated. Currently, these Member States are Germany, France, Great Brittan, the Netherlands and Sweden. The top 5 model contained a 25% fee reduction for SMEs during the first 10 years.

However, the two models only corresponded to the actual renewal fees in the top 4-5 Member States after year 10. For the years 3-5, the EPO had proposed to set the [...]

Belgian Constitutional Court rejects action against UPC ratification

The European patent community and especially the people involved in the preparation of the Unified Patent Court were stirred up in March 2015 by an action launched before the Belgian Constitutional Court. On 10 March 2015 the Belgian non for profit association ESOMA (European Software Market Association) had launched a nullity action against the Belgian law of 27 May 2014 regarding the ratification of the Agreement on a Unified Patent Court. ESOMA had based its action on three pleas. First, ESOMA argued that the ratification of the UPC agreement would lead to a discrimination based on language because the ratification would lead to the applicability of the Regulations on the Unitary Patent a [...]

U.S. Court Sets High Bar For Joint Infringement Of Method Claims

The U.S. Court of Appeals for the Federal Circuit issued its remand decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., and this time affirmed the district court decision that Limelight was not liable for infringement of Akamai’s patents because Limelight had not performed each step of the method claims and was not responsible for the actions of its customers. The decision sets a high bar for joint infringement of method claims, requiring a principal-agent relationship, contractual relationship, or joint enterprise to hold a party liable for the actions of another.  

Liability For U.S. Patent Infringement

Liability for U.S. patent infringement is provided for in 35 [...]

T 2130/11 or how to escape the added matter – clarity trap for disclaimers

In T 2130/11 the Board held that a disclaimer removing more than strictly necessary to restore novelty would not be in contradiction with the spirit of G 1/03 if it was required to satisfy Article 84 EPC and it did not lead to an arbitrary reshaping of the claims.

Will Danish courts adopt a more holistic approach on claim construction?

In a recent Supreme Court decision from Denmark (Dansk Mink Papir vs. Jasopels A/S), the Supreme Court rendered a decision which could mark the inauguration of a more holistic approach by Danish courts in their assessment of patent protective scope.

The invention concerned a so-called pelt bag developed by Dansk Mink Papir which had also developed two machines for bags keeping in place mink fur on the pelt. The invention consisted in fat and moisture absorbing bags, extending to at least 1/3 of the holding area as opposed to the prior art which described only fat absorption explicitly, but moisture absorption only implicitly and with bags covering more than 1/3 of the holding area, so-called [...]

FRAND-defense under Article 102 TFEU in the aftermath of the General Advocate’s opinion

On 26 March 2015 the Landgericht Düsseldorf rendered a judgment granting an injunction based on the finding of infringement of an SEP by sales of smartphones implementing NFC – Near Field Communication according to an ETSI standard (France Brevet vs. HTC – Landgericht Düsseldorf 4b O 140/13). Defendant’s FRAND-defense was rejected by the Court because Defendant had failed to sufficiently substantiate facts establishing Plaintiff’s dominant position within the internal market according to Article 102 TFEU.

In essence the Landgericht followed the opinion of General Advocate Melchior Wathelet (Opinion delivered on 20 November 2014 in Case C-170/13) that the ownership of an SEP as such do [...]

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