For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 11 November 2011

A monopoly on patents? Why the location of the Unified Patent Court is an issue

The Unified Patent Court: it has got to be somewhere round here ...
Following on from the AmeriKat's recent post on the potential benefits of hosting the Central Division of the proposed European Unified Patents Court in London, the IPKat has learned from a fly on the wall that, at a meeting of the UK Intellectual Property Office last Monday, it was reported that the only country which has up till now made a bid for the Central Division -- which will most likely also host the appeal court -- is Germany.

As readers of this weblog will be aware, under the proposed regulations for the Unified Patents Court [don't ask for a link -- every time the Kat thinks he's got the latest version, another one pops up] every patent revocation action will have to be commenced in the Central Division. Counterclaims for revocation can be referred to the Central Division if the local court bifurcates infringement and validity issues, as the German court(s) will undoubtedly do since this follows their existing manner of handling patent litigation.

The IPKat's informant remarks thus:
"If it turns out that Germany is awarded the court, that jurisdiction would enjoy an enviable dominance over the proposed new European patent system. Unified patents and European patents will be both granted and opposed in at the European Patent Office in Munich. Patent owners will be able to sue for infringement in the German courts, safe in the knowledge that validity will be deferred to the Central Division, in Germany. This will mean that the strength of a litigated patent will not be tested when infringement is considered with the potential result that injunctions to restrain the infringement of those untested patents will be granted across most of Europe. Any eventual appeals would also be heard in Germany.  
One might think that German attorneys would also be delighted at the prospect, but the numerous flaws in the proposed system -- which is being rushed through for the sake of political expediency -- causes everyone concern. Some of those concerns, particularly the cost of the new system, are eloquently expressed in this article from German patent attorney Thorsten Bausch of Hoffmann Eitle, who draws a timely analogy with the current difficulties in the Eurozone. Other concerns, notably the intended involvement of the Court of Justice of the European Union in clarifying (or not...) issues of basic patent law, are recorded in the clearly-articulated resolutions from the European Patent Litigators Association (EPLAW) which can be read here
These are troubling times for the European patent profession, undoubtedly, but thee may be even more trouble ahead for those who find themselves sued in the German division of the Unified Patents Court, looking down the barrel of a patent of questionable validity which has been pointed at them, and with nowhere to turn if they want a swift decision on the issue of validity with which to protect themselves".
The IPKat knows that the German system has many admirers, both within Germany and outside it, as well as critics.  He therefore expects to receive plenty of comments both supporting and defending the position expressed above. He also feels that the issue of litigation on infringement which precedes the establishment of a patents's validity is a problem which will not be resolved by the location of the Unified Patents Court: it is regrettable in his view that we have still not been able to devise a system for post-grant validity challenges that operates swiftly enough for the ever-changing world in which we live.

Merpel speculates on another topic which is a little off-topic: she has often wondered whether the German patent system works well because it's a good system per se, or because the people who drive it are educated, well-trained and know how to make it work. But this is a subject for another day ...

36 comments:

Anonymous said...

Getting their towels on the deckchairs again!

Anonymous said...

Great posting. Some points to add -

While it is probably right that the German division will instinctively reach for bifurcation, that's not inevitable. The fact that every judicial panel is international will create more pressure for Germany to fall into line with what everyone else does, and even more so if Germany wants to secure the court. Also don't forget that the reason bifurcation exists in Germany is driven by constitutional objections to tort being decided in a federal court. It is hard to see how that objection can be raised against a court that is not a federal, but a European, creature. If Germany can sign up to the system at all, it surely cannot sustain a constitutional objection to bifurcation.

There is a strong case for spreading institutions across the EU and a valid observation that centralisation tends to support concerns over the EU democratic deficit. Unfortunately the logic of efficiency and centralisation that would drive a decision in favour of Germany on this occasion only tends to deepen the feelings of suspicion and alienation that come from seeing an increasingly centralising tendency.

Article 10 of the Treaty on European Union says "Decisions shall be taken as openly and as closely as possible to the citizen." The current process of determining where the court will be located is not a shining example of the Union living up to its obligations. If a decision really is made by Christmas, through a process that has had absolutely no opportunity for citizen input, it will be a disgraceful transgression of treaty responsibilities.

Finally, on validity: you commented "we have still not been able to devise a system for post-grant validity challenges that operates swiftly enough for the ever-changing world in which we live." Not strictly true. The answer is to go to London or The Hague, both of which will give you a swift and sensible answer on validity well within a year.

Anonymous said...

I echo the comments above though doubt that the new court will not quickly become Germanic in tendency desipte its ntionasl international make-up. Dr Froehlinger will not doubt see to that too.

Over the last few years this process has been an astounding "stitch-up" by the Germans given wonderful cover by the Commission.

Here's a question you'll all know the answer to: Between 1983 and 1987, in which large, teutonic, heavily industrialised European Member State was Margot Froehlinger a judge? Answers on a postcard please, but no prizes for guessing.

Jobs for "die Jungs [und Mädels of course]" -you betchya, and our lot of ConDems are useless enough to let them get away with it.

Anonymous said...

This is German domination going mad at a time when they are milking their position in Europe and as the dominant member of the Eurozone, yet are failing to act to prevent a now seemingly unstoppable dive back into recession. Germany has done very well out of the EU and Euro and are now protecting their hoard. Even France is in Danger of being taken out by the bond markets due to the Merkel effect. I am in no way anti-German, but I am opposed to their actions and recent inactions.

The unitary court will be dealing with international litigants so this is not simply an EU issue. There are already major bodies in France, Belgium and Germany including the EPO so a bit of diversication by placing the court somewhere else is a good idea. London is an international legal centre already with good transport facilities etc etc and very little needs to be done to place the court there. In contrast, most cities of many EU states are not geared up for taking on such an institution so increased costs would be incurred for purely political objectives, which is nonsensical, just like the dual-base of the European Parliament (though nothing could be so ridiculous).

I'm not personally a fan of London dominating everything in the UK either but on this occasion the argument is a good one. Not to mention the availability of the Olympic stadium as a venue for those multi-litigant cases.

Anonymous said...

It's probably far too late now for a change of heart, but would not the chances of "being awarded" the seat of the new court have been much greater if Britain had not shown a sustained hostility to so many things European?

Put differently, would anyone even consider offering the franchise for a new steak house to a committed vegetarian?

I personally* still consider Britain the best place for the new court, given not only its past record in this field but also the glaring absence of anything European of importance (or has this changed since I last looked?).

* To avoid any thought that I might be biased, let me make it clear that I am neither British nor do I live in Britain (but many years ago I did qualify as a British patent agent - as it then was - and like to think I still understand the British patent system quite well).

Anonymous said...

Who makes a decision on whether or not to bid? Surely London should be chancing its arm on this. I think it would be a great venue, although what I think is not of great relevance. It seems others think the same though. I have no idea how these things work, does the UK government have to bid, or is it the UK courts?

I guess the question is, who should we be lobbying to make them bid? Perhaps I should write to my MP!

Anonymous said...

Yes, write to you MP. Write to anyone to get a bid in. Then phone anyone elsewhere in Europe or outside who is interested, and get them to do the same. The loudest shout may win the day. Unfortunately, stiff upper lips and British reserve and politeness won't.

Annsley Merelle Ward said...

....which is why this American will glady do a lot of shouting on your behalf.

Anonymous said...

I'm not British and so I'm not biased! Interesting comment from someone making an anti-British statement. Just what are these so many things European that we have shown hostility to? Pray tell.

We have great respect for the European patent system and our courts follow the case law of the EPO,, even to the extent of reading the EPC rather than the UK Patents Act. We are the most EU-law abiding nation when the great European state of France take sits pick over what laws it decides to implement.

We have a fully open system for tendering for govt contracts and state subsidies whereas every other EU state promotes blatant nepitism and self interest.

Of course, we didn't join the Euro did we? That great political gamble which is seeing us plunging back into recession.celic

Anonymous said...

I still don't see anybody here grasping the point, that English common law is alien to the litigation communities of mainland Europe. Suppose you are trying to get mainland Europe to abandon their legal system and switch to that of the USA. How many votes in favor would you expect?

Anonymous said...

The location may not be such a concern as long as the court/panel is composed of judges coming
from other European countries and do not represent a single German view. The purpose of this body is obviously not to favour one nation over others within Europe. The international composition of the court should (hopefully) be a sufficient safeguard.

Anonymous said...

It seems the main point is missed by many, perhaps stuck on thinking that the current UK system that allows legal opportunism which acts against rewarding innovation, is at all sensible. Your informant states "the issue of litigation on infringement which precedes the establishment of a patents's validity is a problem" but this person seems to conveniently forget that a patent's validity is actually established by the IPO. No mention of that anywhere which is incredible. Trying to review their process only when a client has been charged with infringement simply undermines the IPO. So the focus should be on better quality work at the IPO in the first instance assuming that is unsatisfactory (they say the quality is excellent) - not complaining about losing fees from going over IPO work which is clearly the thrust of the entire argument.

The UK Patents County Court adjustments on damages limitations obviously wipes the UK out of contention for a European wide action.

MaxDrei said...

Think back to the days when the EPO was about to open for business. Who wrote its Manual of Examining Prctice. Wasn't this sterling work lead by a Brit? Reflect on how much the EPO would have been a "German Office" but for the early and admirable, sleeves rolled up attitude of the UK contingent.

But those days are deep in the past. Fat chance of any return to those glory years, when setting up a European Union patent litigation system in a Europe in which the UK today has the reputation of a serial whinger, whose patent attorneys look down on anything continental, and whose voters would like nothing better than to withdraw totally to their island fastness.

Anonymous said...

The location matters greatly for logistical reasons. It's not just a case of putting a few judges up in a Travelodge for a few days during a trial.

Anon at 9:36 has raised a point that questions the very exisitng of greater unity, and not, as stated merely questions the UK as a location for the court. If the court isn't going to apply the law in a manner acceptable to all participants then why bother?

There are many reasons, including economic ones, for basing the court somewhere other than Germany. The mere fact that Germany is doing so well economically at the moment out of its membership of the EU (and Euro), its location with Europe, and its power to make most of the rules affecting Europe, means that it doesn't need any European institution to be located there in order to get its fair share of benefit.

Anonymous said...

Yes Max, the UK should stop whinging about Europe and become more involved. We should integrate more with our continental neighbours (including those run by corrput politicains of the highest order and whose nationals don't pay taxes because the other EU members especially the UK will fund their corrupt and incopetent regimes), learn to speak all of their languages (including Luxembourgian or whatever) even though English is the only international language, and we should plunge head first into a purely political goal that will be a single currency even though all members will be allowed to break the rules to esnure it all goes ahead smoothly and even though the major powers will stick their head in the sand and watch it all go pear-shaped because the lining of their own nation's profits (Germany and France) is more important.

Absolutely right Max. Let's go for it. Funny thing is, all this integration over the years is designed to stop a new armed conflict in Europe. I may be naive, but you don't need to sleep with your neighbours and give them access to all your belongings just to ensure you don't invade each other.

If continental European can't see the problem with further integration over and above what is necessary for an equal marketplace and beneficial cooperation on many matters, then they will probably end up with collapsing governments, bankrupt nations and an imploding currency. When that happens (what are the chances!!!) you will find the citizens of previously prosperous nations being held to ransom by the rich (Germany and France) who will continue to enjoy expensive (obviously now cheap) summer holidays, drive round in expensive German cars, drink the fines French wines, while millions suffer great hardship elsewhere.

Sounds like good ingredients for a major fallout of nations, leading to protectionsism, disagreement over borders (fishing rights etc) and possibly even the odd military conflict. In other words, failure.

Anonymous said...

Re Anonymous 1:01:00, the IPO itself doesn't guarantee validity: see PA1977, Section 116 and the corresponding section 116 of the MPP:


"IMMUNITY OF DEPARTMENT
Section 116: Immunity of department as regards official acts


Section 116
Neither the Secretary of State nor any officer of his -
(a) shall be taken to warrant the validity of any patent granted under this Act or any treaty or international convention to which the United Kingdom is a party; or
(b) shall incur any liability by reason of or in connection with any examination or investigation required or authorised by this Act or any such treaty or convention, or any report or other proceedings consequent on any such examination or investigation.

116.01 This section protects the Secretary of State and his officers, including officials of the Patent Office, from any liability arising from official acts connected with examination or investigation under the 1977 Act or the EPC or PCT. It also provides that no warranty is given in respect of the validity of patents, including 1977 Act patents and European patents.
"

When I was an examiner at the Patent Office [as was] under the 1949 act, the official view was that examination was very much a coarse sieve. It was made clear to trainees that the ultimate authority for determining validity was the courts, and the Patents Act specifically stated that any doubt was to be resolved in favour of the applicant. Things were tightened up under the 1977 Act [which allowed examiners to object to obviousness for the first time], but the old philosophy persisted in practice.

Unlike today, up to 30 years ago examiners were still expected to read and understand the description in detail, and there was enough work that an examiner could build up considerable expertise in a particular field of subject matter over decades. Even then there were some cases that I came across during a reorganisation where a fellow examiner, having evidently had to examine cases in unfamiliar technology, had clearly got the wrong end of the stick, had searched inappropriately [specifically, in completely the wrong heading] and, having found nothing, had passed applications in order which were clearly not novel. A perusal of the customer feedback pages of the IPO web site indicates that less than satisfactory searching occasionally happens today.

Since "crossing the fence" I have investigated the validity of numerous patents that have been asserted against my employers, and the first thing you do is get the file wrapper of the patent in suit and any other family members and see what crawls out of the woodwork. As well as unearthing relevant prior art in other countries, examiners are human and sometimes raise objections that are not addressed in the applicant's reply and get overlooked, or fail to appreciate that arguments advanced by the applicant are flawed.

Examiners often do not have ready access to relevant non-patent literature, hence the perceived need for the P2P project introduced recently.

MaxDrei said...

The UK was in the EPC from the beginning, and so we got a first class EPO. What a shame that the UK wasn't in the EEC from the beginning, writing the Manual from the get go. For then we would not have had the Euro, and all the misery that is now bringing, to the UK as much as to mainland Europe.

As to the European Patents Court, if the UK is fully active from the beginning, it might just work. Otherwise not. Holland, half way between London and Duesseldorf, has a vibrant patent litigation practice. Ask yourselves, does it matter, what venue the Dutch patent litigation community would support.

Lastly, access. Above, we might have a rant, but thank goodness we have not yet descended to the depths of a Patently-O thread. Still, I do wonder, how many intemperate or xenophobic contributions have had to be disapproved. None, I hope.

MaxDrei said...

Bifurcation is OK if you do obviousness the German way ie an ex-Patent Office Examiner sitting as a Federal Patents Court judge and writing "It's obvious because I say it's obvious". Or worse, a Supreme Court decision writing "It's obvious because the expert we appointed for the case says it's obvious". Why else does the German Supreme Court currently feel it so necessary repeatedly to reprimand German judges for deferring too much to the court-appointed expert.

But what else can those poor German judges do, when under their system they have no possibility to defer their decision until after they have observed the opposing technical experts under cross-examination?

Isn't that the best reason to fight for England to remain available as a venue for litigating patents in Europe?

Why not ask those who litigate their patent disputes in Europe. What do they say? What do they need? I think they need the option of litigating under English law, Dutch law and German law, ad that's regardless whether they are petitioning for infringement or for revocation. Retaining that option is what keeps the courts of those three countries pragmatic, and their jurisprudence converging.

As Joan Baez would sing "You only know what you've got when it's gone".

Anonymous said...

@ Anonymous of Friday, November 11, 2011 7:28:00 PM

If
"I personally* still consider Britain the best place for the new court, given not only its past record in this field but also the glaring absence of anything European of importance (or has this changed since I last looked?)."
is an anti-British statement, then I guess you are right, I am biased.

Anonymous said...

We should integrate more with our continental neighbours (including those run by corrput politicains of the highest order and whose nationals don't pay taxes because the other EU members especially the UK will fund their corrupt and incopetent regimes)

Because, of course, corrupt politicians at the highest order (say, Members of Parliament fiddling expenses, or Cabinet Ministers setting up "former roommates") are, of course, entirely unheard of North of the white cliffs of Dover. So are policemen selling confidential information to criminal snoops or royals selling themselves to foreign kleptocratic despots. And of course, everybody pays their taxes, even "non-resident" party treasurers with interests in Belize...

learn to speak all of their languages (including Luxembourgian or whatever) even though English is the only international language

"Only international language"? There are, as a matter of fact, more native Spanish than English speakers worldwide. Among European languages, Portuguese, German and French are also quite international, as it happens.

And, by the way, it's "Luxembourgish", not "Luxemburgian". If you are going to claim that English is "the only international language", at least do make an effort to use it correctly.

In any case, I am deeply opposed to this court being located in London, if only for the reason that I don't want to have to go through passport control whenever I
have to visit it.

Anonymous said...

Biased statement: = "but would not the chances of "being awarded" the seat of the new court have been much greater if Britain had not shown a sustained hostility to so many things European?

Put differently, would anyone even consider offering the franchise for a new steak house to a committed vegetarian?" Please read your own comment before responding. Use of 'sustained hostility' is simply anti-UK rhetoric, so easily used by those wishing to discriminate against others. The facts on the UKs contribution to all things European provide a different conclusion.

Re Corruption. It is important in the IP world to appreciate that all words are used in a statement for a reason. If you want to go back and have another read, you will find the use of the term 'of the highest order' was used to differentiate between your standard corrupt politician (expenses etc) and those who manipulate govt policy and contracts for their own personal financial gain.

Maybe you are of the opinion that we should not be critical of such people because many act the same way just on a lower scale?

English is the only international language. It is irrelevant how many people speak Spanish as their mother tongue. On the subject of Spanish, I accept and have always considered it to be the most important language after English. This is why I believe a single European patent should be in English with any required translation being provided in Spanish (not French or German).

When commentators need to pick up on typos and spelling errors (even a deliberately lazy one) it is a good sign that they have lost the argument.

NotAnon said...

@ Anon of 10:15

Regarding language, the more important question is which language is most understood by the users of the unified patent court. Spanish? No chance.

Wikipedia itself provides various estimates, some placing English above Spanish. And when they combine native with secondary speakers, English comes out a shade behind Chinese, but well ahead of anyone else with over three times the number of Spanish speakers.

So yes, English is the sensible choice.

Anonymous said...

If you want to go back and have another read, you will find the use of the term 'of the highest order' was used to differentiate between your standard corrupt politician (expenses etc) and those who manipulate govt policy and contracts for their own personal financial gain.

I wonder in which aspect you find Continental corruption more offensive or pervasive than the "standard" British variety, which may, or may not, be connected with Her Majesty's successive Governments notorious "laissez faire" policies on issues like financial regulation and tax havens. Is it the stench of garlic?

It is important in the IP world to appreciate that all words are used in a statement for a reason.

It is just for this reason that you should at least try to use the correct words. It isn't a good sample of your professional ability if a non-native speaker can give you English lessons. And you are lucky that I didn't even comment on your typos or spelling errors.

Also, in your comment "of the highest order" referred to the politicians, not the corruption. If all words were there for a reason, and the reason was the one which you posit, then you haven't properly constructed your sentence either.

Anonymous said...

It is a feature of the bifurcated system in Germany, as it currently operates in practice, that an infringement trial in the most popular regional courts is normally heard some considerable time before the validity trial in Munich. Moreover, if the infringement court finds infringement, it can grant an injunction and will normally only stay its proceedings (and any injunction) pending the outcome of the validity hearing if the defendant can show a “high likelihood” that the patent will be revoked.

The fact that an injunction can be granted early can cause understandable concern to defendants. As Floyd J stated in Nokia v IPCom, [2010] EWHC 1750 (Pat);
I am impressed by the evidence that is put in that the impact of an injunction in any one country on the business of Nokia could be very significant indeed. I think that this concern that an injunction should be granted without any court hearing previously considered the validity of the patent in detail is an understandable one.

In consequence, in recent years there have been a number of cases in the English court in which a party which is a Defendant to patent infringement proceedings in Germany has (a) sought revocation of the corresponding UK patent and (b) sought an order for a speedy trial in the English action, so that a decision on validity would be available to the German infringement court. These cases include at least:
(a) HTC Europe Co. Ltd v Apple Inc. [2011] EWHC 2396 (Pat);
(b) Telefonaktiebolaget LM Ericsson v ZTE (UK) Ltd [2011] EWHC 1907 (Pat);
(c) Nokia Corp v IPCom [2010] EWHC 1750 (Pat);
(d) Nokia Corp v IPCom [2009] EWHC 317 (Pat);
(e) Research in Motion UK v Visto Corporation [2008] EWHC 3025 (Pat); and
(f) Research in Motion UK v Inpro Licensing [2005] EWHC 1292 (Pat).

The UK court has always been suitably diplomatic in its language, but it is striking that alleged infringers have in a number of cases felt it necessary to resort to revocation proceedings in the English courts, in an attempt to avoid what they perceived as harsh and potentially unfair consequences of the bifurcated system in Germany.

The UK court for its part has been prepared to assist and to give this factor some weight, though without wishing to undertake the burden of taking on a supervisory role over German procedure (as Laddie J put it in Rim v Inpro, without “trying to trump the German courts”). However, this is a role that perhaps needs to be filled, at least in cases where the real issue between the parties is validity.

Anonymous said...

That last anonymous at 3:08pm makes no mention of the asserted patent having emerged from examination on the merits of the application, duly issued by the responsible Patent Office, with a high presumption of validity. Judges in Duesseldorf ((I suppose) still cling doggedly to the belief that, if the Patent Office issued it, and nobody opposed, well then it must be valid (see up above in this thread for such a clinger).

Until 10 years ago, the EPO published in its annual Report the nationality of the Opponent. Is it still today 70% German, as it was through the first 20 years of the history of the EPO). That particular statistic is a consequence of the bifurcated system in the courts of Germany. Don't we patent attorneys want more opposition work? Here's how to get it. Why are there so many patent attorneys in Germany with a court gown hanging on a peg, ready for deployment at a moment's notice?

Anonymous said...

Rigorous though the German examination undoubtedly is as a rule, it can only provide a [rebuttable] prima facie presumption of validity.

I recall reviewing the file of the German member of a patent family that had been asserted against a client where the granted German claims were much broader than those of the other family members. It was clear from the minutes of an interview with the examiner at which a representative of the (US) applicant and the German attorney were both present, that the teaching of an English-language cited document had been completely misrepresented to the examiner. It was asserted that the document was a completely impractical theoretical proposal, that the data was merely theoretical, and that the various untranslatable terms meant that no useful teaching could be derived from it. The examiner had taken this at face value and had therefore waived it as a citation.

In fact the document was a report of the first year's operation of an actual telecommunications system, the figures were actual data relating to the actual performance of the actual equipment, which had been positively identified by manufacturer and type numbers, and the terminology and technical description seemed perfectly clear, both to me and to the examiners in all the other jurisdictions, where the claims had had to be restricted to circumvent it.

Anonymous said...

Oh Dear, Anon at 2:38 really has lost the plot and the ability to argue in a meaningful manner. Wot with all me tipos and misteaks i am a cleerly a lousy professional. What Anon fails to appreciate about the English language is its ability to be be varied by the user, which has led to its evolution as the most useful (as well as the only international) language on the planet. As for typos, spelling errors and grammatical faux pas, who cares? This is an internet blog and most of us are typing in a tiny pop-up box on a tiny computer or handheld device with neither the desire nor inclination to print and proof read just to satisfy a despearete anal commentator. If anon wants to share some examples of his/her finest work with me I will happily try and learn from someone who has never let a mistake or typo through.

Aside from finding my typos (for which I am obviosuly grateful you have chosen not to embarrass me with), you have also resorted to twisting arguments and putting words in my mouth. However, I do not make such schoolboy errors. My accusations regarding corruption do not differentiate between British and continental corruption, but between the corruption you referred to that occurs in the UK, and the corruption that has occurred in certain European countries by its leaders (lets see how a certain Italian politician gets on in court now he is not protected by his position).

Michael Ashcroft, by the way, pays the tax he is legally obliged to in the UK. The problem is wih his status and the law. This is different than the position in Greece where paying tax is something many just don't do.

In any event, British corruption is just that, British. I wouldn't expect to enter into any union with another country whereby such British corruption was a factor in bringing down any other nation's economy.

I look forward to further English lessons from an educated master. Me mate, I learnt meself ow t'speak on the job and a lesson in sentence construction and whether to put me adverbs before or after me pronouns and identifying the subject in correct relation to the object is summit poss beyond me ableness if yer get me drift.

Anonymous said...

Max Drei. If you are going to make pithy musical asides to spice up your otherwise entertaining and thought provoking posts, please make them correct. "You don't know what you've got till it's gone" was sung by Joni Mitchell, not Joan Baez.

Anonymous said...

Back to a main issue, rather than having to deal with a disgruntled non-Brit who doesn't like a Brit defending their own country against biased and inaccurate rhetoric.

As a patent attorney, I accept that the examination of patent applications (including by the EPO) is only the first stage in the assessment of validity. The true test and examination must be in court or during opposition proceedings. To me, therefore, it is wrong for infringement to be decided without the benefit of a challenge to validity.

I appreciate such a comment may give the impression that I am anti-all things German and European, but I shall sleep soundly tonight knowing I have exercised my right to free speech. I apologise to my fellow nationals if such a damned-if-we-do, damned-if-we-don't, belief loses us the chance of getting the unitary patent court.

MaxDrei said...

Thanks anonymous at 8:54 for the correction. A useful warning to the cobbler together of patent law provocations, not to stray from his last. Joni Mitchell it was. Of course. I remember now.

Anonymous said...

In any event, British corruption is just that, British. I wouldn't expect to enter into any union with another country whereby such British corruption was a factor in bringing down any other nation's economy.

And yet, the Italian politician which you alluded was infamously covered by false evidence presented by a notorious solicitor with extremely close links to Whitehall at the time, and who was also involved in an equally infamous political donation to a major British party.

Anonymous said...

I would like to offer my offer some observations from my personal experiences on the German view that a patent that has survived examination [ and opposition] has a high presumption of validity.

As a trainee, I was taught that a feature of the German patent practice is that patents are opposed more frequently than in the UK. A patent that has successfully withstood an opposition might be assumed to have a higher presumption of validity than one that has not.

As I am reasonably fluent in German, I subsequently became responsible for a family of German patents that were part of the assets of a German company that my employers had acquired. A number of these had been unsuccessfully opposed, but on reviewing the files it was clear that most of them had been opposed on very flimsy grounds indeed.

I concluded that some possible scenarios were:
the opponents had targets for filing numbers of oppositions, however hopeless;
the opponents really hadn’t understood either the inventions or the prior art on which the oppositions had been based [all of which were German-language documents, so language shouldn’t have been a problem]; or
the patentees had got “men of straw” to oppose their patents on extremely weak grounds so as to give their granted patents a greater implied air of validity.

As far as we were concerned, fine: we had patents that had survived opposition, giving them an air of presumed validity that they really shouldn’t have had from an objective consideration of the grounds of opposition.

MaxDrei said...

In reply to that last contributer, what better and cheaper way of training in house patent attorneys is there, than to have them draft oppositions for filing against the patents of your keenest competitors. The trainees learn, and the competitor lacks in house resources to draft and file new patent applications because everybody there is busy drafting defences against all those oppositions.

Happy Days, for German patent attorneys.

Question: should inter partes proceedings therefore be made prohibitively expensive, to deter this sort of abuse?

Anonymous said...

Opposing for training purposes does make some sense. Wasn't there the case a few years ago of the Italian EPA who filed an opposition in his own right, not because of any interest in the patent, but for the experience, because it was cheaper than attending a course on how to file and prosecute oppositions before the EPO?

Anonymous said...

"French court convicts Chirac of corruption"

http://www.google.com/hostednews/ap/article/ALeqM5hGkeGH0WgnFImlafdSdh23mFmdbQ?docId=92169883e8ad4a44af82930a3d4d7f65

Possibly better to have an "obstinate kid" acting in a nation's self-interest, rather than crooks looking after their own personal self-interest.

Anonymous said...

Have we upset the French again? Was it yesterdays refusal to bung many more billions to the IMF to bail them out, or has Harry Ramsden's been given a few Michelin stars? Garfunkels even?

"Mr. Noyer suggested that based on economic fundamentals, the first in the firing line should be the U.K.'s triple-A rating, not France's, due to the country's bigger deficit, similar debt, higher inflation and lower growth."

http://online.wsj.com/article/SB10001424052970204844504577100424144925542.html

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