SONNENBERG
FORTMANN
24IP LAW
GROUP
FFANCE
MÜNCHEN
BIELEFELD
LONDON
SONNENBERG
FORTMANN
European Patents 2015
Presentation by
Dr. Robert Harrison
© 11 April 2008
24IP LAW GROUP
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USA PLLC
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The Vision – European Patents 2015
© 11 April 2008
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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….
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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.
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To the modern European Patent Convention 2000
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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.
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European Patent Convention Contracting States
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• 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.
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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
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European Union (Community) Patent
• Lots of work in 1972, 1990 and 2000-2002
• 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
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London Agreement
• Renounce requirement to translate patent specifications
• Granted Claims need to be translated into
 English
 French
 German
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• Ratified in UK, France, Germany, Sweden, Switzerland,
Netherlands, Croatia, Latvia, Liechenstein, Slovenia, Monaco,
Iceland, Denmark, Luxembourg (but usually only for Englishlanguage applications)
• Claims still need to be translated.
• Where are Italy, Spain, Greece, Belgium?
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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……
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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)
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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
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Changes in Substantive Laws
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• 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
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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,“..
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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
© 11 April 2008
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EPO – 2015
Rob‘s predictions
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• 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
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FORTMANN
Thanks for your attention!
Dr. Robert Harrison
24IP Law Group Sonnenberg Fortmann
Munich/London/Paris/Bielefeld
© 11 April 2008
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[email protected]
Tel +49 89 23 23 00
Mobile +49 172 819 0403
www.24ip.com
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