THE EPO strike is about 1.5 days away. Some European (continental) media, not just British media, covers this. Translations would be well received if anyone could send us some.
So what happens with a not opted out "bundle" patent that is litigated at the UPC?
Let's assume that the relevant national law under Article 5(3) of Reg. 1257/2012 is UK law. Does the UPC apply Section 60 as applicable to non-unitary patents, or does it apply Articles 25 to 27 of the UPCA?
I have seen commentary that definitively states that "For determining the infringement question relating to European or Unitary Patents, the UPC shall apply the articles regarding direct infringement (article 25), indirect infringement (article 26), limitations of the effect of a patent (article 27), and exhaustion of rights (article 29) provided in the UPC Agreement".
I cannot see the UK Courts going against the wording of the UK Patents Act. Thus, if the above-quoted commentary is correct, does this mean that the applicable law of infringement for the UK will be determined by the court in which the patent is litigated?
As there are substantial differences between the different laws (e.g. with respect to indirect infringement) such a conclusion would hardly be consistent with fundamental provisions governing legal certainty!
Upon reflection, instead of referring to the indirect infringement provisions, I should have perhaps have referred to the experimental use exemption in Section 60 (6D) (vs. that in UPCA Art. 27(b)).
I had quite forgotten that the Member States are taking a narrow interpretation of "European patent" - to mean, for example, "EP(UK)" rather than just EP. Baroness Neville-Rolfe made that clear in her letter relating to the amendments to UK law.
http://www.publications.parliament.uk/pa/ld201516/ldselect/ldsecleg/94/9406.htm
It is an interesting question whether the definition of "European patent" in the UPCA ("a patent granted under the provisions of the EPC, which does not benefit from unitary effect") supports that view. Perhaps those who are more familiar with the legislative history of the UPCA can comment.
However, the Baroness has also put forward a (rather tenuous) argument that Article 149a EPC overrides both of Articles 2 and 64 EPC - and so we should perhaps not take every statement in her letter to be true.
On this latter point, I have always puzzled over why an ability to conclude "special agreements" should somehow be interpreted as meaning that long-standing, fundamental tenets of the EPC (such as Article 2 and 64) can be overridden when the "special agreement" in question contains no explicit provisions to that effect!
Might the UPC might make "precautionary" oppositions less necessary? Well, perhaps - though the influence that this factor will have on the number of oppositions will, at least in the short term, be limited by the fact that there will be significant markets (such as those of Spain and Poland) that will remain out of the system.
On the other hand, one could argue that the rather high costs for filing a counterclaim of invalidity at the UPC might make competitors more inclined to file "precautionary" oppositions. And why not? An opposition gives you another bite of the cherry, adds relatively little to total litigation costs and deals with markets that the UPC cannot reach. What's not to like about that?
This latter point emphasises the fact that the UPC and EPO oppositions need not be mutually exclusive. Each has its own pros and cons and will therefore be used (or not used) if it suits the needs of each individual litigant. Businesses therefore need both systems to be strong and effective. So I would say that it is about time to reverse what appears to have been a deliberate policy of under-staffing of the Technical Boards of Appeal.
Well said, Proof [the commenter above]. I expect the UPC mindset to be not a million miles away from that of the courts in Germany. So, if your story to the UPC, when the patent is asserted against you, is that the patent should never have issued, the court might ask why you never opposed it when you had the chance. It is not only The Lord who helps those who help themselves. If you cannot convince the EPO that the issued patent is too broad, why should you suppose you will fare any better at the UPC. Look what's happening now, in the USA. These days, if you want a US patent struck down, go and ask the USPTO to oblige. The USPTO is overwhelmed with petitions to revoke.
Incidentally, I baulked at your word "policy" when it comes to the President of the EPO declining to present to the AC any names for filling the ever more numerous gaps in the staffing of the Boards of Appeal at the EPO. For all I know, he is doing it capriciously, in a fit of pique, because the AC still won't give him what he is demanding. I cannot understand why the AC goes for so long, negligently tolerating such nonsense from the President. Mere hand-wringing is not enough to deal with such a man. He (like any self-respecting CEO) just laughs at that.