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A Practitioner's Guide to European Patent Law: For National Practice and the Unified Patent Court 2nd ed (eBook)

Paul England

ISBN13: 9781509947652
Published: September 2022
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
Price: Out of print
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This new edition is a comprehensive and practical guide to European patent law – a 'ius commune'. The book highlights the areas of consistency and difference between the most influential European patent law jurisdictions: the European Patent Office, England and Wales, France, Germany, and the Netherlands. The book also draws insights from further afield, with contributions from other, very active, patent jurisdictions, including Belgium, Italy, Spain, Sweden, Denmark, and Switzerland.

Uniquely, the book addresses European patent law by subject matter area, assessing the key national and EPO approaches together rather than nation by nation. Each chapter outlines the common ground between the national approaches and provides a guide for the possible application of European patent law in national courts and the UPC in the future.

In addition to featuring content on new countries, the second edition includes new chapters dedicated to the substantive aspects of FRAND, declarations, and evidence. There is also an expanded commentary on construction, including common terms used in patent claims. A must-read for anyone working in the field of European patent law.

Subjects:
Intellectual Property Law, eBooks
Contents:
Explanatory Note and Acknowledgements
Abbreviations
Table of Cases
Table of EU and International Material
Table of National Materials
Introduction
I. Towards a Common Standard of Patent Law
II. The Purpose of this Book
III. Outline of Chapters
1. The Skilled Person and their Common General Knowledge
I. The Skilled Person or Team
II. Common General Knowledge
III. Towards Common Ground
2. Construction and Scope of Protection of Patent Claims
I. Statutory Basis
II. Principles of construction
III. General Principles of National Law on the Doctrine of Equivalents
IV. The Role of the “Formstein defence”
V. The Role of the Prosecution File
VI. Particular terms and forms of claim
VII. Forms of claim
VIII. Numerical Ranges
IX. Towards Common Ground
3. Direct Infringement
I. Statutory Basis
II. Liability
III. Product claims (Article 25(a) CPC 1989)
IV. Process claims (Article 26 CPC 1989)
V. Products Made by an Infringing Process (Article 24(c) CPC 1989)
VI. Processes for obtaining new products
VII. Second Medical Use Claim Infringement
VIII. Problems raised by purpose limited claims
IX. Infringement of DNA Sequences
X. Unjustified threats
XI. Towards Common Ground
4. Indirect Infringement
I. Statutory Basis
II. Means Relating to an Essential Element of the Invention
III. Means suitable for putting the invention into effect
IV. Staple Commercial Products
V. Knowledge
VI. Staple commercial products
VII. Double Territoriality
VIII. Extra-territoriality
IX. Indirect Infringement of Second Medical Use Claims
X. Other forms of contributory infringement
XI. Towards Common Ground
5. Defences
I. The Diverse Sources of Defence to Infringement
II. The Experimental Use Exemption
III. The Bolar Exemption
IV. Other defences in the CPC 1989
V. Exhaustion
VI. De minimis
VII. Public interest compulsion and Crown use
VIII. Invalidity and non-infringement of Claims Asserted
IX. Euro-defences
X. Prior Use
XI. Innocent Infringement as a Defence to Damages
XII. Towards Common Ground
6. Declarations
I. General jurisdictional basis
II. Declarations of non-infringement
III. Declaration that patent is standard essential
IV. Declarations concerning validity
7. FRAND
I. Standards, SEPs and FRAND
II. European Guidance
III. General Principles of National Law
V. Determining the FRAND royalty rate
8. Remedies
I. Statutory Basis
II. Preliminary Injunctions
III. Damages for unjustified injunction
IV. Effect of Protective Letter
V. Quia Timet Injunction
VI. Final Injunction
VII. Publication of Judgment
VIII. Affect of tested validity
IX. Approach to costs
X. Towards Common Ground
9. Patentability and Industrial Application
I. Statutory Basis
II. Industrial Application
III. Excluded Subject-matter
IV. Exceptions to Patentability
V. Methods of Treatment and Diagnostics – Article 53(c) EPC
VI. Towards Common Ground
10. Novelty
I. Statutory Basis
II. General Principles of EPO and National Case Law
III. Disclosure and enablement
IV. Interpreting Patent Claims and the Prior Art for Novelty Purposes
V. Made Available to the Public
VI. Novelty Over General Disclosures in the Art
VII. Priority
VIII. Product by Process Claims
IX. First, Second and Subsequent Medical Uses
X. Other Forms of Purpose-limited Claims
XI. Claim Amendment
XII. Towards a Common Approach
11. Inventive step
I. Statutory Basis
II. Date
III. Determination of fact or law?
IV. A technical or commercial question?
V. The role of Common General Knowledge
VI. The Approach of the EPO Boards
VII. The Approaches of the National Courts
VIII. Criticism of Problem-and-Solution
IX. Criticism of Motivation-based Tests
X. An Alternative Basis for Assessing Inventive Step
XI. Mixed Technical and Non-technical Features
XII. Combinations of Prior Art Features
XIII. Other Factors
XIV. Towards Common Ground
12. Sufficiency
I. Statutory Basis
II. General Approaches of EPO and National Law
III. Principle of general application
IV. Forms of claim
V. Inventive improvements / infringements
VI. Enablement not meeting quality promised
VII. Errors
VIII. Biological Deposits
IX. Plausibility in the Context of Insufficiency
X. Lack of Clarity
XI. Towards Common Ground
13. Plausibility
I. Is There a Statutory Basis?
II. Origins of Plausibility in the EPO
III. Inventive Step
IV. Insufficiency
V. Industrial Applicability
VI. The Novelty Context
VII. Post-dated Evidence
VIII. The Plausibility Threshold
IX. Further Questions
X. Towards Common Ground
14. Supplementary Protection Certificates
I. Statutory Basis
II. Plant Protection Regulation
III. Conditions for Grant
IV. Protected by a Basic Patent in Force
V. Marketing Authorisations in the SPC Context
VI. Extent of protection (Article 4 SPC Regulation)
VII. Same Rights as Conferred by the Patent (Article 5 SPC Regulation)
VIII. Term
IX. Medicinal Products for Paediatric Use
X. The SPC Manufacturing Waiver
XI. Towards Common Ground
15. Patent Ownership, Dealings and Employee Inventors
I. Introduction
II. Ownership
III. Inventor Compensation
IV. Rights of Co-owners
V. Patent Dealings
VI. Effect of Transfer of Ownership on Licensee
VII. Compulsory Licences and Licences of Right
VIII. Public interest compulsion or Crown use
IX. Patent Ownership, Dealings and Employee Inventors
16. Cross-border Actions in Europe
I. Relation between national and EPO proceedings
II. The Brussels Regulation
III. Cross-border Validity Actions
IV. Cross-border Infringement Actions
V. Cross-border Declarations of Non-infringement
VI. Common Ground
17. Evidence
I. General principles
II. Burden of proof
III. General obligations to produce evidence
IV. Specific procedures for obtaining evidence
V. Witness of fact evidence
VI. Expert opinion evidence
VII. Evidence as Applied to Construction
VIII. Experiments
IX. Letters rogatory (letters of request) and US 1782
X. Border seizures
XI. Confidentiality
XII. Privilege
18. The Impact of Brexit
I. Background
II. The impact of Brexit on 31 January 2020'Future Relationship'
III. and the 'Future Relationship' after 31 December 2020 and Patents
Appendices
Appendix A: Extracts of EPC 2000
Appendix B: Extracts of the Community Patent Convention 1989
Appendix C: The SPC Regulation
Appendix D: The Biotechnology Directive
Appendix E: The Enforcement Directive
Appendix F: The Unitary Patent Regulation
Appendix G: Extracts of the Unified Patent Court Agreement
Appendix H: Consolidated Version of the Paediatric Regulation
Index