|Yes, but is it reasonable ...?|
This piece was prepared by Elettra Bietti (Allen & Overy). Thanks, Elettra!
|Yes, but is it reasonable ...?|
As very few patent cases are heard in Luxembourg, it has no current plans to host a Local Division of the UPC. Cases which could otherwise have been filed in that Local Division, will be heard by the Central Division instead.PatLit is not surprised to learn that Luxembourg has no grand plans for a Local Division, though quite a few patent-related matters of legal principle will be litigated there anyway in the Court of Justice of the European Union.
The UPC Agreement must now be ratified by a further six countries (including the UK and Germany) before the EU can introduce the new unitary patent right and Unified Patent Court. The Netherlands is taking steps towards ratification; it launched a public consultation on ratification of the UPC at the beginning of May 2015. On 13 May 2015, the Italian Ministry of Economic Development issued a press release saying that it is a priority for Italy to join the Unitary Patent. Italy had previously said that it would join the Unified Patent Court but not the Unitary Patent. This change of position comes within weeks of the decision of the Court of Justice of the European Union to reject Spain's second challenge to the legality of the Unitary Patent system.
" ... a new study shows that the pace of litigation has actually slipped — for the first time in five years. This is a big deal for a whole range of industries, not just the tech sector. It's happening at a time when the spotlight on frivolous patent lawsuits has never been brighter. And that makes it a surprising find.This blogger is not particularly surprised about the outcome of the survey and he doesn't think it is of significance at all. For one thing, he feels that the high rate of patent litigation in the US may itself be based on the me-too principle: after a couple of speculative patent actions against moneyed defendants secure large damages awards and this is publicised, suing for patent infringement becomes a form of learned profitable behaviour among others, who may persist in pursuing it for a while but will stop when it becomes unprofitable. The analogy is with feeding pigeons in the park: at first, I have plenty of bread and there are only a few pigeons to feed. When I've been throwing crumbs to them for a while, many other pigeons learn to approach me for more crumbs. Once I have finished dispensing crumbs, the pigeons will still hang around for a short while but will move on once they learn that there is no further pay-out.
The letters are often vague about which patents have allegedly been infringed, leading to confusion and fear among the victims about what they may have done wrong. They can fight the suit and go to court, but defending a case is costly and unaffordable for many companies. The congressional legislation being debated would try to address some of these issues.
But here's what else could wind up curtailing patent litigation: The Supreme Court. According to PwC, the sharp decline in new patent lawsuits can be traced almost directly to the outcome of a major case last year known as Alice Corp. v CLS Bank. Most analysts at the time said that Alice didn't matter much. The Court ruled that the software patent Alice Corp. used to sue CLS didn't pass the smell test. That much was obvious to many people watching the case; what they really wanted from the Court decision was a more concrete outline as to what kinds of software patent were patentable.
But the fact that Alice put some limits on software patents at all appears to have put major pressure on those who are considering bringing a patent lawsuit, said PwC.
Alice effectively "raised the bar for patentability and enforcement of software patents," PwC's report reads.
This doesn't make the issue of abusive patent litigation go away. Previously, PwC found that patent trolls accounted for 67 percent of all new patent lawsuits. But this year's findings suggest that the increase in patent trolling is not inevitable.
for patent trial judges?
"We would like to get as wide a response as possible, so I was hoping that you might be able to mention it in a posting".PatLit is always pleased to oblige. Wragge Lawrence Graham & Co's Survey on the Unitary Patent and Unified Patent Court can be accessed at https://www.surveymonkey.com/s/unitarypatentsurvey and it should not take more than 10 minutes of your time. The questions are designed to be answered by respondents from outside as well as inside the UK and, while the organisers expect to be closing the survey in mid-June, there is no formal closing date.
CIPA’s annual Congress has been a recurring theme during the recent ‘meet-the-members’ tour. It is clear that you value CIPA staging Congress each year as it acts as a showcase for the UK profession and helps your Institute to influence policy formers on your behalf. Many of you have, however, said that you would be more likely to attend if it were not so expensive. I am going to put that to the test.The venue is still the Lancaster London Hotel, and the dates are Thursday 1 and Friday 2 October 2015. This blogger ventures to suggest that the new registration fee arrangements will have an impact, particularly on corporate patent departments, and he expects that the event will be all the better for them [ie the fee reduction should be fit for purpose ...].
I have encouraged the Congress Steering Committee to reduce the cost of Congress by up to twenty-five percent for 2015 as an experiment [Bravo! Can this be the beginning of a new trend?]. This is a challenge for us in that we always aim for Congress to achieve a break-even budget and to do so we need more of you to attend, but you have told me that cost is the deciding factor and I hope that at £775 (+VAT) for a two day conference (£685 +VAT if you book early) you will see this to be real value for money.
We are taking a provocative look at the world of intellectual property in 2015, asking the question: The global IP system, is it fit for purpose? A programme full of influential speakers will address themes such as:
- Do patents block innovation?
- Harmonisation: holy grail or poisoned chalice?
- IP crime: a crime without victims?
- At last, a unified patent system for Europe, but what does this mean for business strategy?
- Disruptive technologies: the end of IP as we know it or a new beginning?
- How can business and industry make the best use of the global IP system?
"A national court or tribunal may submit a request for a preliminary ruling to the Court as soon as it finds that a ruling on the interpretation or validity of European Union law is necessary to enable it to give judgment."* Case law made it clear that, as a rule, the court could not tell whether it was necessary to decide a point until all the facts were ascertained, so in general it was best to decide the facts first; it followed that, in principle, a reference should only be made in the context of facts agreed or determined by the national court,
The Court dismisses both of Spain’s actions against the regulations implementing enhanced cooperation in the area of the creation of unitary patent protection
The current European patent protection system is governed by the European Patent Convention (EPC), an international agreement which is not subject to EU law. That convention provides that, in each of the Contracting States for which it is granted, the European patent is to have the effect of and be subject to the same conditions as a national patent granted by that State.Further reading on this topic can be found in places. There are three IPKat posts, with accompanying discussion, here, here and here. Steve Peers' EUI Law Analysis blog offers an excellent piece entitled "Cheerleading or judging? The CJEU upholds the EU's unitary patent package", here, And don't miss Wouter Pors' post on the EPLAW Patent Blog here. or Miguel Montana's post on the Kluwer Patent Blog, here.
Through the ‘unitary patent package’ [Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, Council Regulation 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements and the Agreement on a Unified Patent Court], the EU legislature sought to confer unitary protection on the European patent and establish a unified court in this area. Under the EPC system, European patents provide, in each of the States which are party to that convention, protection the extent of which is defined by the national law of each State. By contrast, under the European patent with unitary effect (EPUE) system, the national law designated on the basis of Regulation No 1257/2012 will be applied in the territory of all the participating Member States in which that patent has unitary effect, which will guarantee the uniformity of the protection conferred by the patent. The translation arrangements for the EPUE, which are based on the current procedure in the European Patent Office, are designed to achieve the necessary balance between the interests of economic operators and the public interest in terms of the cost of proceedings and the availability of technical information. The official languages of the Office are English, French and German. The EU legislature also considered that it was essential to establish a court having jurisdiction to hear cases concerning the EPUE in order to ensure the proper functioning of that patent, consistency of case-law and hence legal certainty, and cost-effectiveness for patent proprietors.
Spain seeks the annulment of the two regulations forming part of that package, namely the regulation on the creation of unitary patent protection (Case C-146/13) and the regulation governing the applicable translation arrangements (Case C-147/13).
... [T]he Court of Justice dismisses both of Spain’s actions.
Case C-146/13, Regulation 1257/2012
Spain contests (inter alia) the legality, in the light of EU law, of the administrative procedure preceding the grant of a European patent. It argues that that procedure is not subject to judicial review to ensure the correct and uniform application of EU law and the protection of fundamental rights, which undermines the principle of effective judicial protection.
The Court rejects Spain’s argument by pointing out that the regulation is in no way intended to delimit, even partially, the conditions for granting European patents – which are exclusively governed by the EPC – and that it does not incorporate the procedure for granting European patents laid down by the EPC into EU law. Instead, that regulation merely (i) establishes the conditions under which a European patent previously granted by the European Patent Office pursuant to the provisions of the EPC may, at the request of the patent proprietor, benefit from unitary effect and (ii) provides a definition of that unitary effect.
Spain also submits that the first paragraph of Article 118 TFEU (Treaty on the Functioning of the European Union) concerning the uniform protection of intellectual property rights throughout the European Union is not an adequate legal basis for the regulation.
In that regard, the Court points out that unitary patent protection is apt to prevent divergences in terms of patent protection in the participating Member States and, accordingly, provides uniform protection of intellectual property rights in the territory of those States.
Spain also contests the assignment to the participating Member States acting in a select committee of the Administrative Council of the European Patent Organisation of the power to set the level of renewal fees and to determine the share of distribution of those fees.
The Court observes in that regard that, according to the TFEU, it is for the Member States to adopt all measures of national law necessary to implement legally binding Union acts. Moreover, it inevitably falls to the participating Member States, and not to the Commission or the Council, to adopt all the measures necessary for the purposes of carrying out those tasks, given that the EU – unlike its Member States – is not a party to the EPC. The Court adds that the EU legislature did not delegate any implementing powers which are exclusively its own under EU law to the participating Member States or the European Patent Office.
Case C-147/13, Regulation 1260/2012
Concerning the applicable translation arrangements, Spain alleges (inter alia) infringement of the principle of non-discrimination on the ground of language since – in its opinion – the regulation establishes, with respect to the EPUE, a language arrangement which is prejudicial to individuals whose language is not one of the official languages of the European Patent Office. Spain submits that any exception to the principle that the official languages of the European Union have equal status ought to be justified by criteria which are other than purely economic.
The Court acknowledges that the regulation differentiates between the official languages of the EU. However, it emphasises that the regulation has a legitimate objective, namely the creation of a uniform and simple translation regime for the EPUE so as to facilitate access to patent protection, particularly for small and medium-sized enterprises. The complexity and particularly high costs of the current European patent protection system constitute an obstacle to patent protection within the EU and affect adversely the capacity to innovate and compete of European businesses, particularly small and medium-sized enterprises. The Court emphasises that the language arrangements established by the regulation make access to the EPUE and the patent system as a whole easier, less costly and legally more secure. The regulation is also proportionate, as it maintains the necessary balance between the interests of applicants for EPUEs and the interests of other economic operators in regard to access to translations of texts which confer rights, or proceedings involving more than one economic operator, by introducing a number of mechanisms (including a compensation scheme for the reimbursement of translation costs, a transitional period until a high quality machine translation system is available for all the official languages of the EU, and a full translation of the EPUE for operators suspected of infringement in the event of a dispute).
The Court also holds that the second paragraph of Article 118 TFEU constitutes the correct legal basis for the regulation, as that regulation establishes the language arrangements for a European intellectual property right (namely, the EPUE), defined by reference to the EPC.