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Seite 1 SONNENBERG FORTMANN 24IP LAW GROUP USA PLLC SONNENBERG FORTMANN 24IP LAW GROUP FFANCE MÜNCHEN BIELEFELD LONDON © 11 April IP LAW GROUP European Patents 2015 Presentation by Dr. Robert Harrison
Seite 2 SONNENBERG FORTMANN © 11 April IP LAW GROUP The Vision – European Patents 2015
Seite 3 SONNENBERG FORTMANN © 11 April IP LAW GROUP From the Statute of Monopolies 1623 Section 1 Forasmuch as your most excellent majesty in your royal judgment, and of your blessed disposition to the weal and quiet of your subjects, did in the year of our Lord God 1610 publish in print to the whole realm, and to all posterity, that all grants of monopolies, and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture, are contrary to your majesty's laws, which your majesty's declaration is truly consonant….
Seite 4 SONNENBERG FORTMANN © 11 April IP LAW GROUP From the Statute of Monopolies 1623 Section 2 ….And all monopolies, and all such … letters patents…., and all other matters and things tending as aforesaid, and the force and validity of them, and every of them, ought to be, and shall be for ever hereafter examined, heard, tried, and determined, by and according to the common laws of this realm, and not otherwise.
Seite 5 SONNENBERG FORTMANN © 11 April IP LAW GROUP To the modern European Patent Convention 2000 DESIRING to strengthen co-operation between the States of Europe in respect of the protection of inventions, DESIRING that such protection may be obtained in those States by a single procedure for the grant of patents and by the establishment of certain standard rules governing patents so granted, DESIRING, for this purpose, to conclude a Convention which establishes a European Patent Organisation …. HAVE agreed ….. A system of law, common to the Contracting States for the grant of patents for invention is established by this Convention.
Seite 6 SONNENBERG FORTMANN © 11 April IP LAW GROUP European Patent Convention Contracting States 34 Contracting States 34 National Patent Offices A Single Patent Convention (only for utility patents, separate office for plant patents + design patents) Art (1): A system of law, common to the Contracting States for the grant of patents for invention is established by this Convention. Art 64 (2) A European patent shall …. confer on its proprietor … in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.
Seite 7 SONNENBERG FORTMANN © 11 April IP LAW GROUP European Union 27 Countries (Romania + Bulgaria joined in 2007) 27 Patent Offices (+ European Patent Office + Design Rights Office) 29 Court Systems 23 Different national Languages (+ lots of regional ones) Masses of Different Cultures Source: European Commission
Seite 8 SONNENBERG FORTMANN © 11 April IP LAW GROUP European Union (Community) Patent Lots of work in 1972, 1990 and Issues that killed agreement Language (Political Compromise: Blair + Schröder – translation only when necessary) Infringement (Special courts – or national courts Appeal courts) Role of European Patent Office as transnational body
Seite 9 SONNENBERG FORTMANN © 11 April IP LAW GROUP London Agreement Renounce requirement to translate patent specifications Granted Claims need to be translated into English French German Ratified in UK, France, Germany, Sweden, Switzerland, Netherlands, Croatia, Latvia, Liechenstein, Slovenia, Monaco, Iceland, Denmark, Luxembourg (but usually only for English- language applications) Claims still need to be translated. Where are Italy, Spain, Greece, Belgium?
Seite 10 SONNENBERG FORTMANN © 11 April IP LAW GROUP EPLA – European Patent Litigation Agreement Separate Treaty – not part of EPC or EU Single Litigation in one Patent Court (in country of tort) Appeal to court in Luxembourg (or Sofia?) Potentially open to non-EU countries (like Switzerland, Norway, Iceland, Luxembourg) Constitutional Problems President Sarkozy to the rescue? We still have the language question……
Seite 11 SONNENBERG FORTMANN © 11 April IP LAW GROUP The Language Question…… 23 EU Official Languages Regional languages (you can file a European Patent in Welsh, Scots Gaelic, Irish, Catalan – but not in Plattdütsch or Friesian – and who knows about Breton, Sorbic, the Romanian dialects of the Istrian peninusula) Multi-lingualism is a major domestic political issue in Belgium and Switzerland as well as in Spanish and Italian regions)
Seite 12 SONNENBERG FORTMANN © 11 April IP LAW GROUP And the Court System Italy: lots of provincial courts – but Milan is the main one UK: London, Edinburgh and Belfast France: handfull of courts – but TGI Paris is the main one Germany: most patent litigation in Europe, concentrated in Düsseldorf, Munich and Mannheim
Seite 13 SONNENBERG FORTMANN © 11 April IP LAW GROUP Changes in Substantive Laws Software (computer-implemented inventions) substantially no change EPO will look for the technical effect Period of Grace Introduction is possible – if US adopts first-to-file Note: Germany/Austria/Hungary/Czech Republic have 6-month grace for utility models Prior Art effect of non-published pending applications only relevant for novelty test – and commonly-assigned applications are relevant
Seite 14 SONNENBERG FORTMANN © 11 April IP LAW GROUP Bad Patents Statute of Monopolies ….yet, nevertheless, upon misinformations and untrue pretences of public good many such grants have been unduly obtained and unlawfully put in execution, to the great grievance and inconvenience of your majesty's subjects, contrary to the laws of this your realm, and contrary to your majesty's royal and blessed intention,..
Seite 15 SONNENBERG FORTMANN © 11 April IP LAW GROUP Bad Patents Opposition Regime 9 months after grant Strawman opposition is possible as no need to demonstrate interest Acting as a member of the public Central Limitation Single request of Proprietor to EPO EPLA – Invalidity Suit defence to infringement (in front of national court) central attack at EPO
Seite 16 SONNENBERG FORTMANN © 11 April IP LAW GROUP EPO – 2015 Robs predictions No of Patent Applications will continue to rise Software is basically patentable – but there will be no further legislative issues Patent Litigation Agreement will come into effect Number of infringement cases will rise Patent Licensing and Enforcement Companies will become more active No EU-wide patent English will further dominate patent matters in Europe Patent Prosecution Highway will be expanded
Seite 17 SONNENBERG FORTMANN © 11 April IP LAW GROUP Thanks for your attention! Dr. Robert Harrison 24IP Law Group Sonnenberg Fortmann Munich/London/Paris/Bielefeld Tel Mobile
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