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Five more points Consequential amendment to national patent laws Article 64 EPC requires member states to give the same rights to a European patent as would be given by a national patent. It does not on a plain text reading give member states the right to give European patents more rights than a national patent. The law on indirect infringement of a patent litigated through the UPC (a bundle patent or a unitary patent) extends to sale in one country of an integer intended to put the invention into effect in another country to which the patent extends. Most national patent laws are national in extent and indirect infringement is assessed on a national basis such that supply of an essential integer in one country to put the invention into effect in another country would not (normally) infringe. It appears that some pretty significant amendments to the law of infringement of national patents may be require to put the Unified Patent Court/Unitary Patent [UPCUP] into effect. Renewal fees On conventional European "bundle" patents it is possible to drop designations during the lifetime of the patent to save renewal fee expenditure. With the unitary patent its will not be possible – you keep or drop it for all countries. As the renewal fees may turn out very expensive http://ipnoncredere.blogspot.co.uk/2013/06/more-on-unitary-patent-costs.html this could be a problem. “Use” Turkey is not [yet] part of the EU. One day perhaps when islamaphobia subsides… Unitary nature If countries join the system piecemeal then there could be the result that over time different “unitary” patents will cover different countries with different renewal fees. Also, Croatia looks set to join the EU on 1st July 2013. If it does so and also signs up for the unitary patent, then on a plain text reading of the regulation [unsullied by judicial interpretation], no unitary patent can be granted for any application filed earlier than 1st January 2008 which is when Croatia joined the EPC. Let us hope that they [and other late joiners such as Malta] have the grace to hold back a little to let all who want to sup of the poison UPCUP. Earlier national rights Suppose you have a granted European patent, and it turns out there was an earlier filed later published Estonian utility model for exactly the same invention that was never found in the European search and has only now come to your attention. With a “bundle” European patent you say “c’est la guerre” [very European] and simply drop Estonia and keep all other countries. With the unitary patent you will lose the whole lot and might say “merde” or something a lot stronger. By the way, Belgium does not yet have mandatory 18 month publication….
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You don't need different languages to get different search results. See slides 13 and 14 of Trilateral Collaborative Metrics Study. These show average numbers of documents cited in the national first action in comparison with the ISR. The USPTO does not even agree with itself, citing lots of additional documents even where they did the ISR. One conclusion that could be drawn is that a WOISA from the USPTO is of considerably lower value than one from EPO or JPO, as the USPTO disagrees with itself more than the other trilateral ISAs. Another question that arises is whether the EPO is right to appear so smug in re-using their ISRs at the national phases. So how does this affect PPH? The bottom right cell of the table on slide 14 shows that where the ISA is not the same as the national office and the WOISA indicates patentable subject matter, there is first action agreement only 37% of the time. [When the USPTO is ISA it agrees with itself only 42% of the time]. Taken at face value, this is a surprisingly low level of agreement and raises the question of whether PPH is good for PR but not particularly good for dealing with backlogs. See here for a strained analogy. [By the way, I use PPH myself - it is a useful tool for the applicant].
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Not to mention that in Germany validity is decided by a Federal Court (slowly) and infringement by a State Court (relatively quickly, as if you don't have to think about validity, and don't have to think about juries, you should be able to decide quickly on infringement). Could you imagine a similar situation in the USA? Would a Federal Patent Court ever consider that it had to respect the claim construction offered by a State Court and was not free to adopt a narrower construction? Bifurcation sucks - it is institutionalised injustice.
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Aug 16, 2012