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‘Renewal fees of the unitary patent are not meant to sustain national patent offices’

‘It’s one big mess.’ At times Emil Pot, co-founder and general counsel of biopharmaceutical company ActoGenix, had difficulty containing his frustration at the Congress on the EU patent package, which took place at 17 October 2014 in Brussels. The issue: the discussion on determining the renewal fees of the future unitary patent (UP), and – on top of that – the fact the crucial European markets are not part of the unitary patent regulation.

The level of the UP renewal fees is seen by many as crucial for the success thereof. Earlier that day, Margot Fröhlinger, Principal Director Patent Law and Multilateral Affairs of the EPO, said two criteria were important: On the one hand, low [...]

Public Prior Use of a Pharmaceutical Preparation (T 2458/09)

Although more than 20 years have passed since the Enlarged Board of Appeal issued its decision G 1/92, there is still little case law which provides guidance on how to establish the structure and properties of a particular medicament in a manner so as to be able to rely on the same as a piece of prior art in opposition proceedings.

In G 1/92, the Enlarged Board rejected the notion of T 93/89 that the ingredients of a commercially available product are not made available to the public unless there is reason for experts to investigate its composition by chemical analysis, and it held that the chemical composition of a product is state of the art when the product as such is available to the pub [...]

Is paying for a licensed but later invalidated patent contrary to Article 101 of the TFEU?

Pierre Véron and Amandine Métier, Véron & Associés

On 23 September 2014, the cour d’appel de Paris, in Genentech v. Hoechst and Sanofi Aventis Deutschland, Docket № 12/21810, decided to refer to the Court of Justice of the European Union the following question:

“Should the provisions of Article 81 of the Treaty, now Article 101 of the Treaty on the Functioning of the European Union, be interpreted as an obstacle to giving effect, in case of invalidation of the patents, to a licence agreement which imposes on the licensee royalties for the sole use of the rights attached to the patents under licence?”

Through this referral the court questions the compatibility [...]

Prototype of UPC case management system online

Since last week the prototype of the case management and efiling software for the Unified Patent Court is online for testing purposes. In Brussels, Paul Van Beukeringen (chairman of the preparatory committee) explained today that the purpose of the testing is to get as much feedback as possible from users on how this case management system should work.

The prototype is available through the following link: http://prototype.unified-patent-court.org. Everybody can create an account to access all features of the prototype and give feedback. For now the prototype only shows how an infringement claim can be filed (an example of the statement of claim), applying rules 13-28 of the Rules of Procedu [...]

Will the new Spanish Patents Act introduce “protective writs” in Spain?

In September of 2013 the Spanish Patent and Trademark Office (“SPTO”) published a draft Patents Act, which will hopefully be approved by Parliament within the next few months, assuming that the election calendar so permits. During the last year, the draft has received numerous comments from the stakeholders concerned, including the Spanish competition authorities and the “General Council for the Judiciary” (“GCJ”), the administrative organ that governs the Spanish Judiciary.

One of the suggestions made by the GCJ at paragraphs 116-119 of its Report of 24 July 2014 has been the introduction of a procedure roughly equivalent to “protective writs.” In particular, the Report contains the followi [...]

Obvious to try attacks remain topical even if they take a different path

By Gregory Bacon and Brian Cordery

The English Patents Court (Birss J) recently demonstrated a somewhat unconventional approach to answering the statutory question of obviousness when assessing inventive step*. The judgment also provides some guidance on the role of commercial as opposed to technical considerations, in particular regulatory concerns, when assessing obviousness. Leo Pharma, the defendant in these proceedings, market a successful product in the UK under the brand Dovobet Ointment. Teva sought to revoke two patents in Leo Pharma’s name which protect the Dovobet Ointment product. Leo Pharma in turn claimed infringement of the two patents by Teva’s proposed generic versio [...]

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