30 January 2013

Amendments in US patent law by the 'America Invents Act' (German)

 - 'Innovative Grounds' im US Patentamt - 
On the ksnh::jur blog we began a series of three postings dircted to the amendments in US patent law by the 'Amenrica Invents Act'. Already issued part 1 and part 2 relate to the changes that entered into force on September 16, 2011 and 2012, respectively.

As there are already so many excellent explanations and synopses on this complex topic out there on the internet, it was our  aim to present the US patent reform in German this time. For a short summary of the postings, I thus continue in German:

Die Artikelserie unter dem Titel Änderungen im US Patentrecht duch den 'America Invents Act' wird drei Beiträge umfassen. Die ersten beiden Beiträge beschäftigen sich mit den bereits am 16. September 2011 (Teil 1) und 16 September 2012 (Teil 2) in Kraft getretenen Änderungen, während der dritte Beitrag noch folgt und sich mit denjenigen Änderungen beschäftigen wird, die erst am 16. März 2013 in Kraft treten werden.

Die am 16.09.2011 in Kraft getretenden Änderungen betreffen:
  • Beschleunigte Prüfung (‘prioritized examination‘),
  • Patentierungsausschluss von Strategien zur Steuervermeidung (‘tax strategies‘),
  • Ausschluss von Patenten auf menschliche Organismen (‘human organisms‘),
  • Patentberühmung (‘false marking’, ’virtual marking‘),
  • Vorbenutzungsrechte als Verteidigung gegen Verletzungsklagen (‘prior user rights‘),
  • Abschaffung der Best-Mode-Verteidigung gegen Verletzungsklagen,
  • Abschaffung der ‘Inter-Partes-Reexamination’,
  • Gebührenänderungen (15% surcharge) und ‘micro entities’, und
  • Einschränkung von Mehrfach-Klagen.
Die am 16.09.2012 in Kraft getretenden Änderungen betreffen:

(Photo 2010 von cytech via Flickr unter einer CC Lizenz)

14 January 2013

Legal Texts Implementing the Unitary Patent Infrastructure Consolidated and Officially Available

As noted on the ksnh::law blog tonight, the final text of the Unitary Patent Court Agreement has been published on the server of the European Council today. This completes the troika of consolidated texts implementing the new European patent infrastructure:

The role of the EU Court of Justice in the future European post-grant patent infrastructure

In our yesterday's posting on the ksnh::law blog titled "Does Art 5 UPP Regulation enable CJEU Jurisdiction over Substantive Patent Law?", we attend to the role the Court of Justice of the European Union (CJEU) will play in the new European patent post-grant infrastructure.

This role is basically determined by Article 5.3 of the Unitary Patent Protection Regulation (UPPR), which provides a link to substantive patent law as codified by Articles 14f to 14i of the Unified Patent Court Agreement (UPCA) via referring to the "national law [of that participating Member State being] applicable to the European patent with unitary effect as an object of property" according to Art 7 UPPR.

Whether or not this link is strong enough to authorise the CJEU to hand down preliminary rulings according to Art 267 TFEU in the area of substantive patent law will be subject to interpretation by ... the CJEU itself. And there are some indications that the CJEU might not let such an opportunity slip through its fingers, such as espressed in opinion 1/09 on the compatibility of a predecessor of the UPCA - the EEUPC agreement - with EU law.

Before this background, it might be interesting to consider this tweet on @ksnhlaw in view of the observations of A Dimopoulos and P Vantsiouri as presented in their paper "Of Trips and Traps: The Interpretative Jurisdiction of the Court of Justice of the EU Over Patent" in June 2012.

According to their study, the CJEU can, regardless of the concrete wording of the UPPR and UPCA, anyway acquire a stronger role in the application of patent law by using its jurisdiction over the patent provisions of the TRIPS Agreement, such as the substantive provisions of Art 28, since Art 208 TFEU provides the EU and its highest court with exclusive competence over "commercial aspects of intellectual property", which would incorporate the TRIPS agreement into the body of EU law (see also here).

02 January 2013

The Unitary Patent - After the Game is before the Game (updated)

Sepp Herberger was the manager of the German nation soccer team that won the 1954 World Cup by a miraculous 3-2 final win over Hungay, the undisputed favourite and unbeaten for nearly 5 years. This match, in Germany renowned as the "miracle of Bern", not only has a solid position among national myths and legends but has also been considered the birth of the Federal Republic of Germany and an ignition spark of the West German "Wirtschaftswunder", e.g. by historian Joachim Fest.

Herberger became a national hero and famous for his down-to-earth but cunning quotes like "the next opponent is the toughest" and "after the game is before the game". The latter quote - maybe in the form of "after the endorsement is before the ratification" - seems to perfectly characterise the somewhat ambivalent situation the Unitary Patent is in at the beginning of the year: Important steps have been achieved in December (especially the approval by the EU Parliament and Council), but the rest will not be an easy challenge either.

On the ksnh::law blog we have followed the advances in recent weeks, as well as some side aspects:
The texts approved are the following:
The UPC Agreement will have to be signed by the 25 contracting states at the Competitiveness Council Meeting on 18 February 2013 and then be ratified by at least 13 contracting states states, including mandatory ratifications by France, Germany, and the United Kingdom. The EU Council expects this process to be finished already until November 2013 so that the first Unitary Patents can be issued by the EPO and the first cases can be accepted by the Unified Patent Court as of April 2014.

As sketched in our yesterday's posting "The Prospect of the Unitary Patent in 2013 – Some Thoughts on Ratification" on ksnh::law, for a number of reasons the ratification process may not run through as smoothly as expected, as the requirement of national ratification, either pariamentary or by poular vote, opens the doos for all kinds of national intests again.

The biggest element of uncertainty, however, may be the United Kingdom and the anti-EU movement in the ruling Conservative Party [1]. But also the general eurosceptic atmoshere on the British isles where the public already began to discuss an exit from the European Union at all [1, 2, 3, 4, 5, 6] may endanger the project, as the so called referendum lock may require a totally unpredictable popular vote in the UK on this question.

Update (04.01.13): I just recognised that the two above Regulations have already been properly published in the Official Journal of the European Union, L 361, Vol. 55, 31 Dec 2012:
  • REGULATION (EU) No 1257/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection.

  • COUNCIL REGULATION (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.
Note that Article 5 of Reg. No. 1257/2012 represents the controversial Article 5a that was introduced by  COREPER on 19 Nov 2012 (see here) in order to replace former Articles 6 to 9 that have been deleted on the European Council summit of 28/29 June 2012 (see here).

By the way, do we have to call this legislation (together with the UPC Agreement) now the Nicosia Convention in tribute of the Cyprus Presidency, according to a premature idea of the Polish Presidency in late 2011?

(Photo 1956 by Beyer via Bundesarchiv under a CC license)