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UP will Fragment EU Patent Law further (Patenting System in the EU (Two…
UP will Fragment EU Patent Law further
Innovation
EU innovation has been lower than that in the US. EU business cites the cost of patenting products, the complexity of the process and the non-uniform nature of the EU patent system as reasons for this.
Background
EPO have always sought uniform patent protection, however disagreements over the official language to be used has meant that there has been little development in this area over the years
Powerful countries recognised the need for a limited number of official languages but they were unwilling to exclude theirs, e.g. Itlay
Germany and France used enhanced co-operation procedure to adopt regulation that would bound only countries that sign up. Spain and Italy dissented but most Eu countries agreed
Three regulations followed: enhanced co-op for the creation of the UP, translating agreements of the UP and a regulation establishing the UPC
Patenting System in the EU
Two parts of owning a patent: obtaining a patent and enforcing patent rights
Enhanced Co-Op - effects how patents are granted
UPC Regulation - effects how patents are enforced
National patents and EU patents - two types of EU patent: tradition EU patent and EU patent with unitary effect
Neither enhanced co-op or UPC will effect the national patents available in the EU
EU Patents - Once they are granted by the EPO the inventor must pay a fee and translate them into any languages of MS that the patent holder seeks patent protection - You must also nationalise your EU patent within three months of it being granted
Cheaper than the national system only because you only need to pay one fee for a patent examination - i.e. pre-grant stage is simplified
By implementing the UP and UPC regulations, the EU council sought to simplify the post grant stage in the patent system
When applying for unitary effect the patent holder must translate their specification into one of the 3 official languages of the EPO: English, German or French and an additional language of another signatory state + list patent on the registry
The UP differs from national or traditional EU patents in that the claims must be the same in all countries to be valid - causes problems, e.g you can patent genetic mutations in Frnace but not Germany, thus you could not receive a UP for genetic mutations
UP and UPC Regulations Substantive Law
Characteristics of a UP: article 3 - Rise and fall as one, article 5 defined the scope of the rights and article 6 set for an equivalent to the American patent exhaustion doctrine
Article 20 UPC says that EU law in its entirety will be used, however Article 24 follows up on this and adds a multitude of different sources judges can use when deciding an action
Article 25 - direct infringement, (using making selling etc) article 26 - indirect infringement (third party supplying essential elements of the patented invention)
Article 27 - gives exceptions
28 - Prior Use exception
29 - Mirrors UP article 6 in implementing a patent exhaustion doctrine
Compare with American system
Argued the the UPC is similiar to the US Court of Appeals for the Federal Circuit and unify the patent enforcement proceddures
The UPC may be similar to the CAFA but the UP regulations do not fit in with this anology
Early US - Each circuit court could decide a patent cases, applied their own rules thus decisions were inconsistent and this led to forum shopping by game patentees
Patent Laws in the US were quickly unified after this at a federal level
The big difference is that the CAFA was federally mandated, the UPC needs to be ratified at the discretion of the MS
There are no state based patents in the USA. Even if all the MS signed up to both regulations, the existence of an independent form of patent protection at national level muddies the clarity of the European Patenting System
Compare with US Trademark System
Traditional trademarks were granted per state. in 1943 the Lanham Act created a federal trademark. However, it did not replace the state based trademark but rather supplemented it.
In the US the trade markee's changed from state trademarks to federal trademarks due to the advantage of unfair competition laws
Double Patentability
While a UP holder cannot seek a traditional EU patent to protect their invention, there is nothing in the regulation from stopping a patent holder from also using a national patent to validate their rights nationally. Because this opens up the possibility of double patentability this will further complicate the EU patent syste,