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| schestowitz | http://patentblog.kluweriplaw.com/2020/07/20/the-german-upca-ratification-at-schweinsgalopp-towards-mautdebakel/ | Jul 22 01:07 |
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| schestowitz | " | Jul 22 01:07 |
| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | The German UPCA Ratification – at Schweinsgalopp towards Mautdebakel - Kluwer Patent Blog | Jul 22 01:07 | |
| schestowitz | “Maybe the EU should really think of being more courageous and consequential, i.e. […] to assign the sole competence for granting patents with effect for the EU to the EU IPO “. | Jul 22 01:07 |
| schestowitz | This would also give the EPO Examiners access to a proper Court in employment cases, parliamentary oversight, an ombudsman, and robust social security and pensions. | Jul 22 01:07 |
| schestowitz | REPLY | Jul 22 01:07 |
| schestowitz | X | Jul 22 01:07 |
| schestowitz | JULY 21, 2020 AT 7:26 PM | Jul 22 01:07 |
| schestowitz | Which is precisely why this will never happen. | Jul 22 01:07 |
| schestowitz | REPLY | Jul 22 01:07 |
| schestowitz | Attentive Observer- Part 1 of my comment | Jul 22 01:08 |
| schestowitz | JULY 21, 2020 AT 12:54 AM | Jul 22 01:08 |
| schestowitz | Whilst I can agree with Mr Bausch that it would be foolish for Germany to hastily ratify the UPCA, as such a move is much too risky, I have fundamental reservations about his proposal to involve the EUIPO. | Jul 22 01:08 |
| schestowitz | The German Ministry of Justice has been warned, but if it prefers under the pressure of lobbies to ratify and stick its head in the sand, it will end up in a disaster. My late grandfather used to say if you stick your head in the sand, do not be surprised that your behind will get bruised. | Jul 22 01:08 |
| schestowitz | I can agree that the current UPCA further divides, rather than unifies the European patent landscape. Not only Poland but also the Czech Republic has announced that it will not ratify the UPC. | Jul 22 01:08 |
| schestowitz | I also remind what has been said at the bottom of the document stemming from the European business community: | Jul 22 01:08 |
| schestowitz | “This paper and the positions reflected in it are not supported by the Spanish Confederation of Employers and Industries (CEOE), Confederação Empresarial de Portugal (CIP), the Confederation of Industry of the Czech Republic (SPCR) and MGYOSZ –BUSINESSHUNGARY”. | Jul 22 01:08 |
| schestowitz | I could see indeed Slovakia joining Poland and the Czech Republic. Slovenia has not yet ratified, but will have to as an arbitration chamber should be set up in this country. Not only the Portuguese business association has reservations about the UPC, but Portuguese representatives were also against the UPC. But as an arbitration chamber will be located in Portugal, the UPC was ratified by Portugal. It reminds me of what happens at the | Jul 22 01:08 |
| schestowitz | AC of the EPO: if you are nice, you will get a perk…. | Jul 22 01:08 |
| schestowitz | As to Mr Bausch’s proposal, I would first note that the EU cannot leave the EPC as the EU is not party to the EPC. Mr Bausch’s proposal is flawed for this reason alone. What is suggested by Mr Bausch is to set up a system exclusively for the benefit of EU contracting states. | Jul 22 01:08 |
| schestowitz | I doubt that a consensus will be reached as already the EU Regulation No 1257/2012 of the European Parliament and of the Council of 17 December 2012 was only meant to implement an enhanced cooperation in the area of the creation of unitary patent protection. So even in 2012 not all EU member states were willing to accept a common court. | Jul 22 01:08 |
| schestowitz | A new treaty within the EU relating to a common patent court was not something wished, for whatever reason, by all EU member states. When dealing with the Spanish complaints, the then Advocate General insisted upon the obligation for all EU member states to participate in the enhanced cooperation. It did not alter the negative position of some member states. The EU member states which were against a common court, stayed against a common | Jul 22 01:08 |
| schestowitz | court. | Jul 22 01:08 |
| schestowitz | It is manifest “that the EU has no direct say in the most important institution implementing patent policy in Europe, i.e. the European Patent Office”, but one should not forget that at the time of the signature of the EPC a lot of countries now in the EU were not. Two countries having a patent tradition like Austria and Sweden were not EU member states when the EPC was signed. It should also be remembered that all countries of | Jul 22 01:08 |
| schestowitz | Eastern Europe were first “extension states” in the EPC before coming full member states of the EU. The EPO has thus played an important role in the integration of Europe, even in the absence of any organic links between the two institutions. | Jul 22 01:08 |
| schestowitz | Historically, there were four drafts for a Community Patent Convention, but as it was a closed convention only open to EU member states, it was not expected to be successful as important countries in patent matters were not at the time member of the EU. Two countries come to mind which will never be members of the EU which are Switzerland and Norway. But they are in the EPC. | Jul 22 01:08 |
| schestowitz | Under the pressure of the PCT, it was the then President of the German Patent Office, who proposed the solution to split the grant of the IP title and the exploitation of the IP title. This lead to the EPC, i.e. the Munich Convention of 1973 which is an open convention, and then to the Luxembourg convention on the Community Patent of 1975 which is a closed convention as the UPCA is. The Luxembourg convention was dead borne, mainly for | Jul 22 01:08 |
| schestowitz | the fear of forum shopping and the linguistic regime. | Jul 22 01:08 |
| schestowitz | The EPLA was an attempt to have an open convention as the EPC is, but the famous opinion C 1/09 brought an end to this idea. | Jul 22 01:08 |
| schestowitz | REPLY | Jul 22 01:08 |
| schestowitz | Attentive Observer- Part 2 of my comment | Jul 22 01:08 |
| schestowitz | JULY 21, 2020 AT 12:55 AM | Jul 22 01:08 |
| schestowitz | The UPC has not fully solved the problem of forum shopping when it comes to infringement, as only nullity is to be decided at the central (?) division. The linguistic regime is not as clean as the proponents of the UPC make out, as it is not necessarily the language in which the patent has been granted which can be used in a local or regional division. | Jul 22 01:08 |
| schestowitz | Depending on the local court, oral proceedings can even be held in the national language of the country in which the court sits. See Art 49.1-49.2 UPCA + R 14 UPC, and especially R 14(2, c) UPC, the so-called “English limited clause”. It might not come into play often, but it is there. | Jul 22 01:08 |
| schestowitz | I agree that Eponia has become a small state of its own, and this is not acceptable. But this is due to the deleterious influence of the past and present heads of the EPO, and the failure of the AC to carry out its duty, that is to control the management of the EPO. | Jul 22 01:08 |
| schestowitz | Presently it is the tail wagging the dog, and it will stay like this until the AC wakes up. That is a pity. Would the past and present management have been at the helm of the EPO in its early days, the EPO would never have become what it is was up to 2012. | Jul 22 01:08 |
| schestowitz | What Mr Bausch is proposing is no less than scuttling the EPO. That is not acceptable. It is not because the past and present management behave abominably that it is necessary to dispose of the baby with the bathwater. | Jul 22 01:08 |
| schestowitz | The EPO is one of the success stories of Europe, and by Europe I mean here more than just the EU. The more I think about it, I find that the hidden agenda of the past and present heads of the EPO is to kill it, so that indeed the UPC can prevail. | Jul 22 01:08 |
| schestowitz | I am deeply disappointed with Mr Bausch’s proposal as it would only play in the hands of those who want to reduce the EPO to a mere rubber stamping organisation which should quickly grant everything passing the desk of its examiners so that a “good” court could then separate the wheat from the chaff. Has he really envisaged this consequence? It would also mean less work for representatives, as the EPO would die. | Jul 22 01:08 |
| schestowitz | A common system run by the EUIPO would also allow a concentrated attack from non-EU patent proprietors which will still be in a larger number than EU patent proprietors. | Jul 22 01:08 |
| schestowitz | The Boards of Appeal of the EPO have developed a set of rules which are clear and can be followed. The rules might not be of the liking of everybody, but they are predictable. | Jul 22 01:08 |
| schestowitz | That’s why I have another proposal to repeat. Why not allow oppositions to be filed over the whole life of the patent. After all, the proprietor is allowed to limit its patent over its whole life. That would avoid a clash between the case law of the boards of appeal and the case law of the UPC or whatever it might be called in matters of validity. In other words I propose a kind of European bifurcation. | Jul 22 01:08 |
| schestowitz | The UPC or whatever it might be called would be exclusively dealing with infringement | Jul 22 01:08 |
| schestowitz | This however presupposes that the boards of appeal of the EPO are not perceived as being independent, but are truly independent. That entails amendments to the EPC, but why not? With truly independent boards of appeal, that is which have a separate budget and decide by themselves how many members they need, and not be submitted to the whim of the head of the EPO. | Jul 22 01:08 |
| schestowitz | Presently the chairman of the boards of appeal has only the powers delegated to him by the president. I do not call those double hand cuffs imposed to the boards as allowing them to be independent. Proposals in this direction were done in the years 2004-2005. That would be a good topic for a conference of ministers in charge of IP in accordance with Art 4a EPC. | Jul 22 01:08 |
| schestowitz | This would also allow a reasonably managed EPO to continue its important role in the integration of Europe, a Europe larger than the EU. No need to conclude validation agreements with foreign countries, which are only filing, if at all very few applications, the EPO should rather do its job first and correctly here in Europe. | Jul 22 01:08 |
| schestowitz | The UPC or whatever it might be called would be exclusively dealing with infringement | Jul 22 01:08 |
| schestowitz | This however presupposes that the boards of appeal of the EPO are not perceived as being independent, but are truly independent. That entails amendments to the EPC, but why not? With truly independent boards of appeal, that is which have a separate budget and decide by themselves how many members they need, and not be submitted to the whim of the head of the EPO. | Jul 22 01:08 |
| schestowitz | Presently the chairman of the boards of appeal has only the powers delegated to him by the president. I do not call those double hand cuffs imposed to the boards as allowing them to be independent. Proposals in this direction were done in the years 2004-2005. That would be a good topic for a conference of ministers in charge of IP in accordance with Art 4a EPC. | Jul 22 01:08 |
| schestowitz | This would also allow a reasonably managed EPO to continue its important role in the integration of Europe, a Europe larger than the EU. No need to conclude validation agreements with foreign countries, which are only filing, if at all very few applications, the EPO should rather do its job first and correctly here in Europe. | Jul 22 01:08 |
| schestowitz | REPLY | Jul 22 01:09 |
| schestowitz | Attentive Observer | Jul 22 01:09 |
| schestowitz | JULY 21, 2020 AT 11:23 AM | Jul 22 01:09 |
| schestowitz | Sorry, I made a mistake as some sentences are repeated in the second part of my comment. | Jul 22 01:09 |
| schestowitz | But throwing away all what has been achieved at the EPO just because the past and present heads of the EPO are considering the latter as a playground for their pseudo managerial games would deny all the efforts put in the EPO over the years. The EPO is a true pan-European success story! Please do not forget this in spite of an understandable annoyance of what is going on at the EPO. | Jul 22 01:09 |
| schestowitz | Peter’s solution would also mean that the EPO as we know it would be sculled. I beg to disagree. | Jul 22 01:09 |
| schestowitz | What has to change at the EPO is to give staff proper means of redress starting with a true internal appeals committee worthy of the name and not subordinate to the management of the Office. | Jul 22 01:09 |
| schestowitz | After having exhausted their internal means of redress, EPO staff should just not be left with a tribunal which is no more than an administrative body exhausting its actions by checking that valid procedures have been applied. Sometimes it is not the complaint which should be analysed as such vs. the procedure, but rather the internal procedures which give an undue advantage to the management. | Jul 22 01:09 |
| schestowitz | As long as the management of the EPO will be allowed to hide behind an alleged immunity, the situation at the EPO will not improve. | Jul 22 01:09 |
| schestowitz | REPLY | Jul 22 01:09 |
| schestowitz | Peter Parker | Jul 22 01:09 |
| schestowitz | JULY 21, 2020 AT 1:21 PM | Jul 22 01:09 |
| schestowitz | I feel that people are too focussed on the consitutional aspects. The UPC implementing law could potentially state that it “infringes basic law” as it is the case in some other national laws that limit certain rights mentioned in the Basic Law. What the BVerfG will probably also acknowledge is that a 2/3 majority in the Bundestag and the Bundesrat, if achieved in the next run, cannot easily be waived away with minor formalities | Jul 22 01:09 |
| schestowitz | considering that such a majority could also change the Grundgesetz itself which could be the strategy for a third try in case the next one also fails. If the Basic Law contains a reference to the UPC and the primacy of Union Law as far as the UPC is concerned, the matter should be clear. | Jul 22 01:09 |
| schestowitz | REPLY | Jul 22 01:09 |
| schestowitz | Attentive Observer | Jul 22 01:09 |
| schestowitz | JULY 21, 2020 AT 4:43 PM | Jul 22 01:09 |
| schestowitz | @ Peter | Jul 22 01:09 |
| schestowitz | If a 2/3 majority is achieved in the next run, you claim that it cannot easily be waived away with “minor formalities” considering that such a majority could also change the Grundgesetz itself which could be the strategy for a third try in case the next one also fails. | Jul 22 01:09 |
| schestowitz | In my humble opinion, it is not a “minor formality”, and the Basic Law does not contain any reference to the UPC and hence to the primacy of Union Law as far as the UPC is concerned. | Jul 22 01:09 |
| schestowitz | You cannot write in the Basic Law things which are not in it and do as if they were there. | Jul 22 01:09 |
| schestowitz | It might look as a nice suggestion to imply that supremacy of Union Law is implicit because a similar majority would be needed for such an amendment, but said amendment is simply not there. | Jul 22 01:09 |
| schestowitz | " | Jul 22 01:09 |
| schestowitz | http://patentblog.kluweriplaw.com/2020/07/18/reactions-to-upca-ratification-bill-germany-london-can-delay-plan-b-for-a-up-system-without-the-uk/?doing_wp_cron=1595112328.6088070869445800781250 | Jul 22 01:09 |
| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Reactions to UPCA ratification bill Germany: ‘London can delay plan B for a UP system without the UK’ - Kluwer Patent Blog | Jul 22 01:09 | |
| schestowitz | " | Jul 22 01:09 |
| schestowitz | Interesting comment by UK Watcher about an AI inventorship entity needing capacity to assign its rights. | Jul 22 01:09 |
| schestowitz | I don’t see that as a problem. Consider: | Jul 22 01:09 |
| schestowitz | The owner of the AI machine is already the owner ab initio, of any patentable invention that arises from the employment of the AI machine to make inventions. Just like Section 39 of the UK Patents Act from 1977. Being already the owner/employer, there is no need to get out of the AI machine any freshly signed instrument of assignment specific to the invention. That would be superfluous. | Jul 22 01:09 |
| schestowitz | The employer files at the EPO and puts on the Form of Declaration of Inventorship “AI, by virtue of being its employer”. Prima facie, Applicant is entitled to the patent. Who has locus to dispute that entitlement? Only AI. Will AI dispute entitlement? Not in the foreseeable future. | Jul 22 01:09 |
| schestowitz | Or am I overlooking something? | Jul 22 01:09 |
| schestowitz | " | Jul 22 01:09 |
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