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| schestowitz | http://patentblog.kluweriplaw.com/2022/06/20/upc-the-great-paradox-why-the-cjeu-could-bring-in-uniform-protection-and-equal-effect-when-interpreting-the-eus-external-patent-law-e-g-trips-notwithstanding-the-futile-ef/ | Jun 27 07:02 |
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| -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | UPC – the great paradox: why the CJEU could bring in "uniform protection" and "equal effect" when interpreting the EU's "external" patent law (e.g. TRIPS), notwithstanding the futile efforts at keeping its grubby little hands off "internal" patent law - Kluwer Patent Blog | Jun 27 07:02 | |
| schestowitz | 14 comments | Jun 27 07:02 |
| schestowitz | Martin | Jun 27 07:02 |
| schestowitz | JUNE 20, 2022 AT 8:26 PM | Jun 27 07:02 |
| schestowitz | Dear Mr Montañá, | Jun 27 07:02 |
| schestowitz | thank you for this analysis. | Jun 27 07:02 |
| schestowitz | I did not follow the TRIPS discussion at the ECHR, and now have some catching up to do. | Jun 27 07:02 |
| schestowitz | Adam Brown | Jun 27 07:03 |
| schestowitz | JUNE 20, 2022 AT 8:26 PM | Jun 27 07:03 |
| schestowitz | Someone could suspect the EPO to have influenced the decision of the European Commission in 2011 to NOT join the EPC, in order to avoid intervention of the CJEU in substantive patent law issues. | Jun 27 07:03 |
| schestowitz | The fact that the EPO has recruited Mdme Frohlinger in April 2012 might be interpreted by some as “pantouflage”, she was offered to finish her carreer at the EPO after the Commission bowed to the demand NOT to join the EPC. | Jun 27 07:03 |
| schestowitz | The EPO does not want the CJEU to intervene in its dirty independent kingdom, Aka Eponia. | Jun 27 07:03 |
| schestowitz | Mike Snodin | Jun 27 07:03 |
| schestowitz | JUNE 21, 2022 AT 12:28 PM | Jun 27 07:03 |
| schestowitz | Miquel, I quite agree that the CJEU will likely have a significant influence on the development of UPC case law. | Jun 27 07:03 |
| schestowitz | However, before considering how the CJEU might rule on matters concerning “uniform protection” and “equal effect”, is there not a more fundamental question to answer? That is, because established CJEU’s case law could be seen to cast doubt upon pronouncements in the UPCA (and Regulation 524/14) that the UPC is “a court common to the Member States”, do we not first need to establish whether the UPC is indeed capable of making | Jun 27 07:03 |
| schestowitz | preliminary references to the CJEU under Article 267 TFEU? | Jun 27 07:03 |
| schestowitz | I am losing count of the number of questions relating to the UPC that are highly significant to how (or even whether) the UPC will operate, but where there is huge uncertainty regarding how those questions might be answered. Indeed, in view of AO’s comments on the previous thread, it seems to me that the list now includes questions regarding the constitutionality of “forced intervention” under Rule 316A UPCA. | Jun 27 07:03 |
| schestowitz | Being dragged into proceedings at the UPC against one’s will reminds me of another question that has been bothering me. The question is: how might challenges to the validity of opt-outs (under Article 83(3) UPCA) be resolved? The reason that this bothers me is that: | Jun 27 07:03 |
| schestowitz | – my understanding is that the whole point of filing an opt-out is to escape the jurisdiction of the UPC; but | Jun 27 07:03 |
| schestowitz | – if, as I understand will be the case, the validity of an opt-out can be challenged, even the proprietor of a patent for which a valid opt-out has been filed could be drawn into an action (however short) before the UPC. | Jun 27 07:03 |
| schestowitz | This makes me question whether it can possibly be right for challenges to the validity of opt-outs to be determined by the UPC. Indeed, it seems to me that: | Jun 27 07:03 |
| schestowitz | – challenges to the validity of opt-outs are NOT included in the list of actions in Article 32(1) UPCA as falling within the exclusive competence of the UPCA; and | Jun 27 07:03 |
| schestowitz | – according to Article 32(2) UPCA, the national courts of the Contracting Member States must therefore remain competent for such actions. | Jun 27 07:03 |
| schestowitz | I would have thought that, in principle, a court established by an international treaty cannot expand its jurisdiction / competence beyond that afforded to it by the treaty. If this is correct, then even if it was an inadvertent oversight to omit actions regarding opt-outs from Article 32 UPCA, this lack of competence can only be resolved by amendment of the UPCA (and NOT by amendment of the Rules of Procedure). | Jun 27 07:03 |
| schestowitz | In any event, it seems to me that the national courts of the Member States ought to be perfectly capable of determining the validity of opt-outs … much as they are perfectly capable of interpreting and applying other international treaties relating to patents (such as TRIPS and the EPC) that their governments have signed and ratified. | Jun 27 07:03 |
| schestowitz | Implicitly but necessarily and specifically | Jun 27 07:03 |
| schestowitz | JUNE 21, 2022 AT 1:21 PM | Jun 27 07:03 |
| schestowitz | Having seen the complete mess that the CJEU has made of the law on SPCs, I shudder to think what might happen if it were to get its hands on substantive patent law. | Jun 27 07:03 |
| schestowitz | Under the EPC and the established case law of the Boards of Appeal, we have a (mostly) settled, (mostly) consistent and (mostly) sensible approach to the most common substantive issues. Unless the CJEU undergoes wholesale reform to introduce a specialist IP chamber with appropriate legal and technical expertise, it should be kept well away from such matters. | Jun 27 07:03 |
| schestowitz | Simona Fonzi | Jun 27 07:03 |
| schestowitz | JUNE 22, 2022 AT 11:17 AM | Jun 27 07:03 |
| schestowitz | “Unless the CJEU undergoes wholesale reform to introduce a specialist IP chamber with appropriate legal and technical expertise, it should be kept well away from such matters.” | Jun 27 07:03 |
| schestowitz | That might be an option once the UPC has been recognized a fake common court by the CJEU. | Jun 27 07:03 |
| schestowitz | Everybody understands that the Benelux Court of Justice is a common court because national courts (which are the guardians of EU law together with the CJEU, dixit opinion 1/09) are in charge, while with the UPC those national courts are removed. | Jun 27 07:03 |
| schestowitz | Politicians had a different reading of art 19 TEU, considering that compliance with this article could be satisfied by drawing a link between the UPC and the CJEU for compliance with EU law issues. | Jun 27 07:03 |
| schestowitz | Patent robot | Jun 27 07:03 |
| schestowitz | JUNE 21, 2022 AT 1:23 PM | Jun 27 07:03 |
| schestowitz | Let’s not forget that the EU Regulation on the unitary patent violates Art. 142 EPC. | Jun 27 07:03 |
| schestowitz | Article 142 Unitary patents | Jun 27 07:03 |
| schestowitz | (1) Any group of Contracting States, which has provided by a special agreement that a European patent granted for those States has a unitary character throughout their territories, may provide that a European patent may * ONLY * be granted jointly in respect of all those States. | Jun 27 07:03 |
| schestowitz | Thus, under Art. 142 EPC (as e.g. in CH/LI), proprietors cannot choose between the unitary patent and national validations in the UP states. | Jun 27 07:03 |
| schestowitz | Concerned observer | Jun 27 07:03 |
| schestowitz | JUNE 22, 2022 AT 2:01 PM | Jun 27 07:03 |
| schestowitz | Robot: the manner in which the Participating Member States have failed to harmonise their laws will also lead to gross violations of Article 64(1) EPC. | Jun 27 07:03 |
| schestowitz | The EPC demands that, in any given country in respect of which “a European patent” is granted, that patent SHALL, with the possible exception of protection for the direct product of a process, confer on its proprietor … THE SAME RIGHTS AS would be conferred by A NATIONAL PATENT. | Jun 27 07:03 |
| schestowitz | However, as and when the UPCA comes into force, there could be up to five types of patent in any given Participating Member State that, due to differences regarding the applicable law of infringement, might fall into three different categories that confer (subtly) different rights: | Jun 27 07:03 |
| schestowitz | (1) National patent, European patent (opted out) and European patent (not opted out; litigated at a national court): Law of infringement: national patent law. | Jun 27 07:04 |
| schestowitz | (2) European patent (not opted out; litigated at the UPC): Law of infringement: the UPC Agreement. | Jun 27 07:04 |
| schestowitz | (3) European patent having unitary effect: Law of infringement: patent law applying to unitary patents in the Participating Member State determined according to the UP Regulation. | Jun 27 07:04 |
| schestowitz | Whilst some might argue that the same law applies to categories (2) and (3), my view is that this is far from certain. This is not least because different constitutional arrangements in different Participating Member States will lead to the provisions of the UPC having different significance / effect under different national laws. | Jun 27 07:04 |
| schestowitz | Especially when it comes to issues such as exemptions from infringement (such as the “Bolar” and research exemptions), the difference between patents in category (1) and those in category (2) could be very significant indeed. For example, a clinical trial based upon a head-to-head comparison with a drug patented by a third party might infringe a category (2) patent but NOT a category (1) patent. | Jun 27 07:04 |
| schestowitz | And remember that (1) and (2) might both be European patents. Moreover, the patent in question might, at any time after grant, move from category (1) to category (2) (e.g. by withdrawal of an opt-out). | Jun 27 07:04 |
| schestowitz | How any of this can possibly be lawful (with regard to providing third parties with a reasonable degree of legal certainty) is anyone’s guess. | Jun 27 07:04 |
| schestowitz | Patent robot | Jun 27 07:04 |
| schestowitz | JUNE 22, 2022 AT 6:05 PM | Jun 27 07:04 |
| schestowitz | Concerning observations, indeed. | Jun 27 07:04 |
| schestowitz | Categories (2) and (3) are certainly different e.g. due to Art. 4.4 EU Regulation 1260/2012 (translation arrangements for the unitary patent) | Jun 27 07:04 |
| schestowitz | Simona Fonzi | Jun 27 07:04 |
| schestowitz | JUNE 23, 2022 AT 10:10 AM | Jun 27 07:04 |
| schestowitz | “may provide” is not “must provide”, the same for “may only” is not “must only”, so it might be that it is a possibility, not an obligation. | Jun 27 07:04 |
| schestowitz | https://www.differencebetween.com/difference-between-may-and-vs-must/ | Jun 27 07:04 |
| -TechBytesBot/#techbytes-www.differencebetween.com | Difference Between May and Must | Compare the Difference Between Similar Terms | Jun 27 07:04 | |
| schestowitz | BusinessEurope and other large patent applications wanted to keep all options opened (National + European + Unitary), si I guess the parallel with the Swiss/Lichtenstein agreement was seen as an “option”. | Jun 27 07:04 |
| schestowitz | Concerned observer | Jun 27 07:04 |
| schestowitz | JUNE 23, 2022 AT 4:28 PM | Jun 27 07:04 |
| schestowitz | Simona, based upon your interpretation of the word “may”, are there any legal arrangements for “unitary” patents that are forbidden by Art. 142 EPC? If not, it seems to me that your interpretation may be questionable on the grounds that it would effectively render Art. 142 EPC otiose. | Jun 27 07:04 |
| schestowitz | You may also want to discuss this point with the EPO. Based upon the footnote added to Article 142 EPC, it seems that the EPO is convinced that the group of Participating Member States has availed itself of “the authorisation given in Article 142(1)”. According to your interpretation, however, Article 142(1) EPC does not (explicitly) provide any such authorisation. | Jun 27 07:04 |
| schestowitz | Attentive Observer | Jun 27 07:04 |
| schestowitz | JUNE 22, 2022 AT 9:35 AM | Jun 27 07:04 |
| schestowitz | It is clear that the tenants of the UPC wanted to make everything possible in order avoid the CJEU to put an eye on patent law. I am not sure that the CJEU will accept the fact to have been excluded from this domain. | Jun 27 07:04 |
| schestowitz | As far as SPC are concerned, it is clear that the CJEU has brought some case law which is linked in broad terms to patents. Do you honestly think it will refrain to go into the patent domain? I doubt it. | Jun 27 07:04 |
| schestowitz | The day the UPC will have a prejudicial question about SPC to the CJEU, we will know what the CJEU holds from the UPC. | Jun 27 07:04 |
| schestowitz | I am also wondering why the UPC can, in the absence of a EU wide SPC, have jurisdiction over SPCs which are granted by national authorities. Even in case of a UP, it still a national authority which will grant a SPC with limited territoriality. I never got a convincing explanation as to why this is possible. Conflicts of competence are preprogramed. | Jun 27 07:04 |
| schestowitz | Under the EPC and the established case law of the Boards of Appeal we might have “a (mostly) settled, (mostly) consistent and (mostly) sensible approach to the most common substantive issues”. | Jun 27 07:04 |
| schestowitz | Before thinking of the CJEU, we have to see what the UPC might do of all this. | Jun 27 07:04 |
| schestowitz | As far as infringement is concerned, the UPC might become the leading court in Europe when all patents will become under the competence of the UPC when the transitional period is over. | Jun 27 07:04 |
| schestowitz | As far as validity is concerned it is not sure at all that the UPC will become the leading court in Europe. | Jun 27 07:04 |
| schestowitz | The case law of the UPC might even collide with that of the BA of the EPO. | Jun 27 07:04 |
| schestowitz | Just think for instance of the way added subject-matter is dealt with at the EPO and by national courts. | Jun 27 07:04 |
| schestowitz | What then? As a UP will be a patent granted by the EPO, first instance divisions are only bound by case law of the BA/EBA. The BA are only bound by the case law of the EBA. | Jun 27 07:04 |
| schestowitz | Contrary to what Sir Robin Jacob has said at a conference on the UPC in Munich, I am not sure at all that the UPC will become the leading court in matters of validity in Europe. | Jun 27 07:04 |
| schestowitz | In view of the difference in basic fee between opposition (815€) compared to that for a revocation action before the UPC (20 000€), one could even expect that the number of oppositions against granted patents might increase. | Jun 27 07:04 |
| schestowitz | In any case before the EPO, each party bears its own costs and simultaneous interpretation is borne by the EPO. This is by no means the case at the UPC where the losing party will have to take over the costs of the winning party, comprising as well simultaneous interpretation costs. | Jun 27 07:04 |
| schestowitz | In matters of validity, the UPC might simply add a further layer of case law to the existing national case law or that of the BA/EBA. Where is the gain? It will rather be unsettling to have diverging case law. | Jun 27 07:04 |
| schestowitz | But compared to the huge profits the supporters of the UPC hope to cash in, especially internationally active lawyer firms specialised in litigation, what does it matters if case law is diverging. It might even be better for the business. | Jun 27 07:04 |
| schestowitz | zoobab | Jun 27 07:04 |
| schestowitz | JUNE 22, 2022 AT 5:08 PM | Jun 27 07:04 |
| schestowitz | “In any case before the EPO, each party bears its own costs and simultaneous interpretation is borne by the EPO.” | Jun 27 07:05 |
| schestowitz | Not really, the costs of interpretation other than EN/DE/FR are sent to the parties: | Jun 27 07:05 |
| schestowitz | https://techrights.org/2016/01/08/epo-vesus-spanish-speakers/ | Jun 27 07:05 |
| schestowitz | Attentive Observer | Jun 27 07:05 |
| -TechBytesBot/#techbytes-techrights.org | The European Patent Office (EPO) Doesn’t Like Spanish, So Why Should the Spanish Tolerate the EPO? | Techrights | Jun 27 07:05 | |
| schestowitz | JUNE 23, 2022 AT 1:06 AM | Jun 27 07:05 |
| schestowitz | @ Zoobab, | Jun 27 07:05 |
| schestowitz | The information you got from Techrights is manifestly wrong. | Jun 27 07:05 |
| schestowitz | The costs of interpretation other than EN/DE/FR are NOT sent to the parties, as it is for the party wanting to use the official language of a contracting state to provide the interpretation! | Jun 27 07:05 |
| schestowitz | See R 4(1 and 3) | Jun 27 07:05 |
| schestowitz | It is extremely rare that such an interpretation to and from an official language of a contracting state to the language of the proceedings is needed. Not even once in a blue moon. | Jun 27 07:05 |
| schestowitz | Martin | Jun 27 07:05 |
| schestowitz | JUNE 24, 2022 AT 10:13 AM | Jun 27 07:05 |
| schestowitz | i’ve seen two such cases in three years. (once Spanish, once Italian) | Jun 27 07:05 |
| schestowitz | But the parties do know that they have to provide translations themselves, and pay themselves, procedural language was English in both cases, and ultimately, the translation provided by the party was not to the benefit of the representative, but to the applicant/opponent who appeared beside their representative (company owner/leading tech department/…) | Jun 27 07:05 |
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| schestowitz | x https://soylentnews.org/article.pl?sid=22/06/26/0032216 | Jun 27 08:50 |
| -TechBytesBot/#techbytes-soylentnews.org | Microsoft's Complicated Dance With Open Source - SoylentNews | Jun 27 08:50 | |
| schestowitz-TR | re SN: | Jun 27 08:52 |
| schestowitz-TR | "Microsoft's complicated dance with..." | Jun 27 08:52 |
| schestowitz-TR | "Hitler's complicated dance with Jews" | Jun 27 08:52 |
| schestowitz-TR | "Putin's complicated dance with Kiev" | Jun 27 08:52 |
| schestowitz-TR | "China's complicated dance with Tibet..." | Jun 27 08:52 |
| schestowitz-TR | and the list goes on | Jun 27 08:52 |
| schestowitz-TR | for this one entry, F* SN | Jun 27 08:52 |
| schestowitz-TR | hopefully those are rare | Jun 27 08:52 |
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| schestowitz | " | Jun 27 16:54 |
| schestowitz | SUEPO Munich invites all staff to demonstrate on Wednesday 29 June 2022 (the first day of the 171th session of the Administrative Council) at 12.30h in front of the Isar building. | Jun 27 16:54 |
| schestowitz | Mr Campinos hopes that his “Mobility Package” (CA/32/22 Rev. 1) introducing seconded national experts posts for the delegations will guarantee him a re-election for a second mandate. In a letter sent on 10 June, SUEPO warned the delegations of the decentralisation risks and the requirement of a Conference of Ministers under Article 4a EPC. | Jun 27 16:54 |
| schestowitz | The Technologia survey 2022 results are now available and disastrous for Mr Campinos. In this letter sent on 23 June to the Heads of Delegations, SUEPO urges the Council to take due account of the results and to give the proper mandate to EPO management to repair the situation. | Jun 27 16:54 |
| schestowitz | Come to the demonstration to show the Administrative Council and the rest of the world that there can be no peace at the Office with a President who protects and pursues the Battistelli attacks on staff rights, who orchestrates a flawed Financial Study, who refuses to invest in younger employees who are the future of the EPO, who pushes for a decentralisation of the EPO to serve his re-election and who is unable to conduct social dialogue. | Jun 27 16:54 |
| schestowitz | This paper gives further contextualized information about the current situation. | Jun 27 16:54 |
| schestowitz | " | Jun 27 16:54 |
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