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Latest Patent Development in the European Union
Latest Patent Development in the European Union
Overview
Overview
Unified Patent Court and Unitary Patent Protection - Development
Unified Patent Court and Unitary Patent Protection - Development
Unified Patent Court and Unitary Patent Protection - Development
Unified Patent Court and Unitary Patent Protection - Development
Proposal regarding Unitary Patent Protection
Proposal regarding Unitary Patent Protection
Structure of the envisaged Unitary Patent Court
Structure of the envisaged Unitary Patent Court
Competence of the envisaged Unitary Patent Court
Competence of the envisaged Unitary Patent Court
Shortcomings and Criticism
Shortcomings and Criticism
Latest litigation cases: News on FRAND
Latest litigation cases: News on FRAND
Latest developments in substantial law: News on FRAND
Latest developments in substantial law: News on FRAND
Latest developments in substantial law: News on FRAND
Latest developments in substantial law: News on FRAND
Latest litigation cases: Design rights – fast track to an injunction
Latest litigation cases: Design rights – fast track to an injunction
Latest litigation cases: Design rights – fast track to an injunction
Latest litigation cases: Design rights – fast track to an injunction

Презентация: «Apple сентябрь 2011». Автор: . Файл: «Apple сентябрь 2011.ppt». Размер zip-архива: 142 КБ.

Apple сентябрь 2011

содержание презентации «Apple сентябрь 2011.ppt»
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1 Latest Patent Development in the European Union

Latest Patent Development in the European Union

Dr. Thomas W. Reimann IP Practice in Japan AIPLA Midwinter Meeting Las Vegas, January 2012

2 Overview

Overview

Unified Patent Court and Unitary Patent Protection Latest developments in litigation cases Doctrine of Equivalence – reshaped but still alive News on FRAND Design Rights – fast track to an injunction?

2

© AIPLA 2012

3 Unified Patent Court and Unitary Patent Protection - Development

Unified Patent Court and Unitary Patent Protection - Development

1975/1989: (Amended) Community Patent Convention ? not ratified 2000-2004: Proposals for Community Patent Regulation ? failure to agree on details 2005 – today: new debate – still no final decision: February /March 2011: enhanced cooperation procedure introduced (EU Member States except Spain & Italy) March 2011: CJEU: creation of a Unitary Patent Court incompatible with EU law May 2011: Italy & Spain sue against trilingual system September 2011: Parliament approves continuation of negotiations

© AIPLA 2012

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4 Unified Patent Court and Unitary Patent Protection - Development

Unified Patent Court and Unitary Patent Protection - Development

November 2011: Draft of the Agreement is published 5. December 2011: Competitiveness Council fails to agree on final text 16. December 2011: Polish Presidency acknowledges failure to reach an agreement February 2012: decision to be expected??? 3 basic components: Proposed Regulation for the creation of unitary patent protection Proposed Regulation regarding applicable translation arrangements Draft Agreement regarding Unified Patent Court and Draft Statute

© AIPLA 2012

4

5 Proposal regarding Unitary Patent Protection

Proposal regarding Unitary Patent Protection

Special agreement within the meaning of Article 142 EPC (Art.1) Identical scope of protection, unitary character, unitary effect (Art.3) Right to prevent direct and indirect use of invention (Art. 6-7) Rules on limitation and exhaustion (Art. 8-9)

© AIPLA 2012

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6 Structure of the envisaged Unitary Patent Court

Structure of the envisaged Unitary Patent Court

Court of 1st Instance: Central division (location still not decided: Munich? Paris? London? Milan?...) local and regional divisions Panels with multinational composition Pool of Judges Court of Appeal

© AIPLA 2012

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7 Competence of the envisaged Unitary Patent Court

Competence of the envisaged Unitary Patent Court

Jurisdiction for: European patents with unitary effect European patents In force at the effective date Opt-out option according to Art. 58 during transitional period of 5 years referrals to the CJEU (Art. 14 b)

© AIPLA 2012

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8 Shortcomings and Criticism

Shortcomings and Criticism

inexperienced local divisions ? reduction of quality and efficiency complex and administratively burdensome structure court fees/litigation costs still unclear – important especially for SMEs where are the highly qualified judges supposed to be found? transitional period of 5 years too short more opt-out/opt-in flexibility favorable unpredictable number of referrals to the CJEU – no experience / time-consuming rules of procedure unclear high risk of forum shopping – disadvantages for potential patent infringers (high translation and travel expenses)

© AIPLA 2012

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9 Latest litigation cases: News on FRAND

Latest litigation cases: News on FRAND

FRAND – fair, reasonable and non-discriminatory terms for licensing of standard essential patents German Federal Supreme Court (KZR 39/06- Orange-Book-Standard) established strict requirements for FRAND-defense: irrevocable, binding offer of licensee – exact amount of royalty can be left to equitable discretion of the licensor which can be controlled by court upon request of licensee deposit of payment for ongoing royalties regular payments, rendering of accounts

© AIPLA 2012

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10 Latest developments in substantial law: News on FRAND

Latest developments in substantial law: News on FRAND

Latest case law: Mannheim District Court in Motorola v. Apple (7 O 122/11): Does the license-offer also have to deal with damages for use in the past? Facts: Apple made an offer for a license, but reserved the right to contest the validity of the patent in suit “when, insofar and for as long as” Motorola would seek damages for past infringement above a FRAND rate Apple also has a nullity action pending against the patent in suit

© AIPLA 2012

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11 Latest developments in substantial law: News on FRAND

Latest developments in substantial law: News on FRAND

Decision: Apple`s offer not sufficient for a FRAND-defense: damages limited to FRAND royalty rate give infringer unjustified advantage compared to a regular licensee (recent article by Presiding Judge Meier-Beck of Federal Supreme Court: damages up two double amount of regular royalty or more) Open questions: Can FRAND offer be limited to patent in suit or does it have to cover all (world-wide) standard-essential patents in the portfolio of licensor? Does willful infringement preclude FRAND defense? Nullity action besides FRAND defense possible? Pay back if patent invalid?

© AIPLA 2012

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12 Latest litigation cases: Design rights – fast track to an injunction

Latest litigation cases: Design rights – fast track to an injunction

Recent case law in Germany: Apple v. Samsung (14c O 194/11) Facts: Apple is proprietor of a community design right for a tablet computer reflecting the design of the “iPads“ Samsung sent its “Galaxy Tab“ to different German magazines, which tested and reported about it Duesseldorf District Court granted a preliminary injunction (appeal pending)

© AIPLA 2012

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13 Latest litigation cases: Design rights – fast track to an injunction

Latest litigation cases: Design rights – fast track to an injunction

High potential of Design rights: extend IPRs to the visual design of objects which are not purely technical unexamined IPR – only formal criteria are examined during the registration process – statutory but rebuttable assumption of validity relatively low costs strategic importance in a variety of technical fields important additional protection besides other IPR’s

© AIPLA 2012

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