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‘Opt-out fee for future Unified Patent Court is (unsurprisingly) much too high’

The €80 opt-out fee for the Unified Patent Court (UPC) as proposed by the Preparatory Committee will be a very heavy burden for hard-pressed patent departments.  They are being asked to pay a significant fee for NOT using the new system. ’How perverse can this be?’ says Bristows partner Alan Johnson in answer to questions by Kluwer IP Law about the consultation document on UPC fees, which was published last week.

‘The worst (but least surprising) proposal is the opt-out fee of €80. Many users are looking forward to the new system and will not opt out their existing European patent portfolio.  But it is a cornerstone of the agreement that they are entitled to do so.  Hence levyin [...]

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 [...]

Italy wants to join the Unitary Patent

In an important change of position and influenced by the CJEU’s rejection of the Spanish challenge, Italy has announced it wants to join the enhanced cooperation within the European Union to create the Unitary Patent.

vlag italie kleinThis has been reported by various sources. According to the website of the Società Italiana Brevetti (SIB), Undersecretary Simona Vicari of the Italian Economy Ministry declared yesterday that joining the Unitary Patent is a priority for her ministry. ‘After the decision of the Court of Justice of the European Union of 5 May that dismissed Spain’s appeal, we have the confirmation that the legal framework of the Unitary Patent package is not in question’,  Ms. Vicari said.

T [...]

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 [...]

USA: ArcelorMittal France v. AK Steel Corp, United States Court of Appeals, Federal Circuit, No. 2014-1191, 12 May 2015

In light of a binding prior Federal Circuit decision narrowly construing a key claim term in a patent relating to type of mechanically-resistant steel sheet, the federal district court in Wilmington, Delaware, properly invalidated the first 23 claims of a reissue patent as impermissibly broader than the original claims, but the court erred in invalidating two newly added claims because they did not exceed the scope of the original claims, the U.S. Court of Appeals for the Federal Circuit has determined (ArcelorMittal France v. AK Steel Corp., May 12, 2015, Hughes, T.). The case was remanded to the district court for a decision on the merits regarding the two valid claims.

A full summary of t [...]

Spain: Supreme Court, First Civil Law Chamber, 531/2014, 15 October 2014

On 15 October 2014 the Spanish Supreme Court confirmed its earlier rulings on two issues: after an IP right has been found invalid in first instance but the Court of Appeal overturns this decision because it disagrees with the argument that was the basis for invalidity in first instance, (how) should the Court of Appeal deal with other nullity arguments that have been argued before but not decided upon by the Court of First Instance? And (how) should the Court of Appeal deal with nullity arguments that were dismissed by the Court of First Instance? The decision handed down by the Supreme Court is interesting because it flags-out the need to carefully analyze the issues resolved and not expre [...]

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