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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    EU Unitary Patent And Court Are Here. Or Are They?

    Published on 14 February 2013 @ 9:33 pm

    By for Intellectual Property Watch

    As several countries prepare to sign an international agreement establishing an EU unified patent court, debate still rages over whether the concept of the court, and of a single EU patent, is actually feasible. Some say a unified patent in the near term is a “dead letter,” while one patent lawyer believes that while some technical issues remain, the system will spring into life in the not-too-distant future.

    [Update:] Twenty-four members of the European Union today signed the unified patent court agreement in Brussels, including Italy. For more, see IPW, European Policy, 19 February 2013.

    The Council of the European Union announced on 14 February that a signing ceremony for the international agreement for an EU unified patent court will take place in Brussels on 19 February. In order for the unitary patent to come force, 13 countries, including the UK, France and Germany – the three member states in which the highest number of European patents took effect last year – must ratify it, a European Commission source said. Those three are set to sign and the EC is confident that they will then ratify the agreement, the source said. The package also includes two regulations, one on unitary patent protection, the other on translation arrangements.

    According to an 11 December 2012 FAQ on the patent reform package, the signing launches the national ratification process and the preparatory work for setting up the unified patent court. The European Patent Office (EPO) will begin work on the procedures for the unitary patent.

    If the court agreement isn’t ratified by all 25 member states participating in the “enhanced cooperation” under which the system was agreed to (Italy and Spain so far have opted not to join), the pact will only be effective in those nations that have ratified it, the EC said. In addition, the unitary effect of a European patent will only extend to those countries which have approved the court agreement, it said.

    “Dead Letter”?

    At a 4-5 February Midwinter Patent Experts Conference in Naples, Florida (US), Professor Heinz Goddar argued that a unified patent won’t happen in the short term because German ratification has been deferred until after the next national general election, set for September. The new government will then have to take up the work on the whole patent package again, so won’t begin ratification before the end of 2014 or possibly not until 2015, Goddar told Intellectual Property Watch. That process will take at least a year, so couldn’t be done until late 2015/early 2016, he said. That means hat since ratification is needed from at least the UK, France and Germany, the whole package won’t become effective until 2016/2017 or later, he said.

    But Hogan Lovells (Düsseldorf) patent attorney Clemens Plassmann disputed those predictions, saying in an interview that they’re unjustified. “This is going to fly,” and there’s no reason to believe that the ratification process will kill it, he said in an interview. Ratification could happen as soon as next year, with even Italy and Spain joining, he said. The German government has indicated that it will sign and ratify the agreement this year, either before or after the election. Chancellor Angela Merkel is anxious to showcase her track record of achievements, and the other political parties largely share her government’s view of the need for the EU patent regime, he said.

    Who Needs an EU Patent?

    “There is serious doubt as to whether there will be any major use” of the new system, Foley & Lardner LLP Partner Harold Wegner said in a 16 January email. Very few patent seekers will need protection in all 25 countries, and those who do will be “skittish about putting all their EU patent eggs in the unified patent basket with a winner take all single court proceeding for the entire territory by an as yet unnamed judiciary,” he said.

    If Germany, the UK and France, which have the largest number of patents in force, controlled the evolution of the new regime, “one might have a fair degree on confidence that applicants would use the new procedures to a certain extent,” Wegner wrote. But once those nations and 10 more have ratified the agreement, the ground rules will be determined to a great extent by an overwhelming majority of counties with minimal patenting activity, he said.

    Judging by the talk on the market and companies that depend on enforcement of intellectual property rights, it is mainly a few large pharmaceutical companies that are reluctant to put patents at stake EU-wide, Plassmann said. Some players are taking a wait-and-see approach, he said.

    Another critical question is the overall financial sustainability of the new system, EPO Principal Director, Patent Law and Multilateral Affairs Margot Fröhlinger said in a January 2013 slide presentation. The EPO will have new tasks and a revised compensation scheme. The level of annual patent fees must be set, because the new regulations only set broad criteria, she said.

    Questions also linger about when and under what circumstances the ECJ will have jurisdiction in unitary patent cases, said Plassmann. Some say the regulations will continue to allow the EU high court to take up substantive issues, while others claim it will be shut out, he said.

    And there are still technical hurdles to overcome, Plassmann said. Patent court judges will have to deal with language issues, new rules of procedure and a system that is a hybrid of various jurisdictions’ laws, he said. There could be a convergence of the UK and Continental judicial systems, he said.

    Court Challenges

    Another wrinkle is that Spain and Italy are seeking annulment of the other 25 governments’ decision to authorise “enhanced cooperation” as the legal basis for the unified patent package, and that similar challenges are likely to be brought in the court regarding the regulations on unitary patent protection and translation arrangements, the EPO said.

    ECJ Advocate General Yves Bot addressed all the issues surrounding enhanced cooperation in an 11 December 2012 advisory opinion, Plassmann said. Moreover, ECJ judges made it clear during oral argument that they believe that if the majority of EU countries think enhanced cooperation is the right way to go, they should be able to pursue that path, he said. (The court generally follows its advisors’ opinions but is not bound by them). It’s not clear what Spain’s new grounds for appeal will be, he said.

    A fair way to view the new system is as an additional option for patent-seekers, Plassmann said. They will be able to choose a national patent, a European patent without the unitary effect, a European patent with unitary effect, and so forth, he said. Some may opt not to apply for a single EU patent, at least preliminarily, but they will be monitoring development, he said. Some big pharmaceutical companies may never come around to it, but small and medium-size businesses could benefit from the unitary patent for their innovative products, he said. Overall, the new system offers interesting options for everyone, Plassmann added.

    Dugie Standeford may be reached at info@ip-watch.ch.

     

    Comments

    1. EU Unitary Patent And Court Are Here. Or Are They? – Intellectual Property Watch | Legal Planet says:

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    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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