Tuesday, 26 January 2016

Must Patent Hold-Up be regulated?

The CJEU decision in the matter Huawei ./. ZTE (see e.g. here)  sheds new light on the interface between standard essential patents, antitrust law and competition law.  It is time to come together and have a look onto the fractal legal landscape in this fascinating field!  The Liège Competition and Innovation Institute (LCII) is so kind to organize such a come together.

Readers who do not yet know how to spend the extra day of the present leap year should consider attending to the event:


Abstract: The patent hold-up theory has nurtured many policy developments in the past ten years. On the one hand, Standard Setting Organizations (SSOs) have been exploring changes to their licensing policies, in particular in relation to the commercial implications of FRAND pledges given by holder of Standard Essential Patents (“SEPs”). On the other hand, antitrust agencies and patent courts across the globe have been confronted with several waves of cases Those proceedings have generated a thick, diverse and somewhat inconsistent body of case-law on a wide array of topics, including the availability of injunctive relief, patent valuation, portfolio licensing, practicing and non-practicing entities, etc. This conference seeks to provide a 360° state of play on patent hold-up in contemporary antitrust and patent policy.

This Half-Day conference will take place in Brussels, on February 29th, 2016. The full Conference programme is available here, Registration here.

Speakers include the most prominent scholars, judges and advocate generals in the field such that the event will surely be beneficial to all those who attend.

Monday, 25 January 2016

Double Agent In The Room - T 1693/10

The representative appelant in the oral hearing for the case T 1693/10  took the defendant's representative by surprise by appearing in the company of new colleague who had previously worked in the same firm and same department as defendant's representative.  According to the appelant, he had access to the files and to internal information and his presence was a substantial procedural violation.

Though the alleged double-agent agreed to not saying anything and to only assist the representative as an "accompanying representative", this rendered his former colleague sufficiently nervous to requset that his former colleague be excluded from the hearing and to raise an objection under Rule 106EPC otherwise.

The Board was unimpressed by the presence of the double-agent and pointed out that it was not the body to decide on the epi code of conduct which would be applicable in the case of an eventual conflict of interest.

Friday, 8 January 2016

Novelty on a mental level does not count T 2191/13

The decision T 2191/13 relates to a two-component adhesive system wherein the amount of one of the components B is supposed to be adapted to the respective substrates and processing conditions.

The two-component adhesive system as such was disclosed in the closest prior art but disclosure on whether or not the amount of component B was adapted to anything was lacking.

The board found that the claim was not novel nonetheless. The headnote (in an unofficial translation) reads:

A difference to the prior art existing only on a mental level, which is exclusively based on the existence of an insight, cannot render the subject-matter a claim novel unless the insight is reflected in the technical features of the claimed subject-matter (points 12.3 and 12.4 of the reasons)
The board adds that accepting that features of this type would have a limiting effect would require the assessment of insights an alleged infringer had when selecting component B and the amount thereof when judging on the infringement.  

Thursday, 17 December 2015

EPO - Letters to the Administrative Council

The Administrative Council (AC) of the EPO has met yesterday and continues its meeting today. The IPKat reports on four remarkable letters which have been sent to the AC in preparation of the meeting, wherein the stakeholders note that the acceptance of the EPO's proposal to reform the Boards of Appeal have has been (wilfully?) overstated when President Batistelli has presented the results of the user consultation in CA 98/15. The move to directly address the AC rather than relying on the president as the spokesperson is a clear sign of increasing mistrust between the president and the boards of appeal.

The recent discussion and events have shown that a reform aiming at increasing the perception of independence of the Boards of Appeal has to avoid any direct or indirect influence of the president of the office on the management of the Boards of Appeal. As correctly stated in the long-awaited letter of epi to the AC, the President should abstain from exercising control on the appointment or re-appointment of the board members and on the budget of the Boards of Appeal.

Above all, this blogger concurs with the epi in that the complete recruitment stop has to be removed immediately to keep the Boards Operational and to avoid a further increasing backlog. Operational Boards of Appeal with independent, experienced and motivated members, sufficient rooms to hold oral proceedings and staff support are a core ingredient of the functioning of the European Patent System to be administered by the AC.  

Tuesday, 1 December 2015

Dressing up as Pippi Longstocking is not unfair, either

In a case reported here, the right-holders of the work of Astrid Lindgren had sued a supermarket offering carnival costumes of the literary figure of Pippi Longstocking for infringement of copyright and unfair competition.  The alleged acts of infringement included distributing a prospectus with models being dressed with the costume.

According to the case-law, the utilization of work products of third parties is generally allowable but can be considered unfair if specific circumstances appear to justify this finding.

The action had been dismissed by the BGH insofar as copyright was concerned and had been remitted to the 2nd instance (OLG) to re-assess the claims based on competition law. The OLG found that the pictures with the models could be considered to be an imitation in the sense of § 4 Nr. 9 Buchst. a und b UWG but rejected these claims because no specific circumstances rendering the imitation unfair were recognizable.

The case went back to the BGH which confirmed the result but for different reasons. According to the BGH, the imitation of a character of a novel by transferring features having features of competitive individual character into other product classes as this is the case for carnival costumes is possible but must not be assessed based on low requirements ("keine geringen Anforderungen"). In the case at issue, the overlap between the features characterizing the literary figure of Pippi Longstocking and the design of the carnival costume is sufficiently small to exclude an imitation.

This applies to alleged imitations the character in the novel as such and is without prejudice to the claims based on unfair imitation of actual merchandizing products offered by the right-holder.

Tuesday, 10 November 2015

When Does Presentation of Information Count for Inventiveness?

The decision T 0336/14 offers new insights on the treatment of "mixed inventions" at the EPO.

The headnote is as follows:
In the assessment of inventive step of a claim which comprises technical and non-technical features ("mixed invention") and in which the non-technical features relate to cognitive content presented to the user of a graphical user interface (GUI), i.e. relate to "what" is presented rather than "how" something is presented, it has to be analysed whether the GUI together with the content presented  credibly assists the user in performing a technical task (related to "why" that content is presented) by means of a continued and/or guided human-machine interaction process (see point 1.2).

The board summarizes the case-law and comes to the conclusion that
In other words, it has to be established whether the information presented constitutes "technical information", which credibly enables the user to properly operate the underlying technical system and thus has a technical effect, or rather "non-technical information", which is exclusively aimed at the mental activities of the system user as the final addressee.

In this blogger's view, the latter offers a quite handy and reasonable test which will surely be frequently cited in examination procedures.

Wednesday, 28 October 2015

UPC Rules of Procedure: 18th (and final) draft

The 18th draft of the UPC rules of procedure has now been published on the UPC website. According to the press release,

At its last meeting the UPC Preparatory Committee adopted the Rules of Procedure of the Unified Patent Court, subject to some further adaptations once the Committee has decided on the court fees. This is a major milestone in the progress of the Committees work.  
The agreed text is draft no. 18 which shows that the text has undergone a rigorous process of development and testing. The Rules of Procedure are the result of a successful and fruitful collaboration between the Preparatory Committee's Legal working group and the Drafting Committee. This will underpin the Court's framework and functioning. The work has benefitted strongly from comments from stakeholders submitted during the written consultation and the oral hearing. 
The Rules will be an essential element in the future training of judges of the Court and the decision of the Committee will ensure a smooth transition from the development to the active planning of such training. 
Those interested in the Court's operation should familiarise themselves with the text.

This blogger is most impressed by this monumental work of the Drafting Committee, which will surely be loved and hated and hopefully be the solid ground for the functioning of the Court and the basis professional life of quite a few practitioners in the next decades.
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