Posts in Europe

Evaluating Europe’s New IP Court: How the UPC is Doing So Far and What’s to Come

On June 1, 2023, the Unified Patent Court (UPC) opened, providing a new venue for patent litigation across all 17 ratifying European Union member states. The court represents a significant shift in patent litigation in the EU, which is poised to impact the global patent strategy of U.S. and multinational companies. Through the European Patent Office (EPO), inventors have long been able to obtain patent protection across most of the EU through a single application. Once the EPO grants a European Patent, inventors have the option of obtaining local patent protection in any member state that they select without the need for further examination or review. However, historically, once the EPO granted a patent, there was no single enforcement or invalidation mechanism, leaving it up to the member states to enforce patent rights.

EPO Enlarged Board of Appeal Introduces Strong Presumption of Priority Entitlement

The Enlarged Board of Appeal of the European Patent Office (EPO) on October 10 issued its (consolidated) decision G1/22 & G2/22, which promises to significantly reduce priority issues for applicants—U.S.applicants in particular. When the applicants for a European patent application differ from the applicants on the priority application, the EPO employs the well-established “joint applicants approach” to evaluate the priority claim’s validity. For the priority claim to be valid, and assuming there’s been no transfer of the priority right, all applicants of the priority application must also be among the applicants of the subsequent European patent application. The table below outlines various scenarios and indicates whether the priority claim is valid according to the joint applicants approach.

EU SEP Regulation Update: Reenvisaging the European ‘FRANDscape’

On  April 27, 2023, the European Commission published its proposal for how the licensing of standard essential patents (SEPs) should be governed in the EU. The draft regulation states that the initiative aims to incentivize participation by European firms in the standard development process and the broad implementation of such standardized technologies, particularly in IoT industries. The developments are of interest to any business that develops, implements or markets connective technologies.

Is the United States’ Nonobviousness Test ‘Plausibly’ Similar to the EPO/UK Inventive Step Standard?

Recent cases in the European Patent Office (EPO), the UK, and United States illustrate substantive differences between these jurisdictions as they continue to develop their inventive step/nonobviousness frameworks. In particular, the EPO and UK have recently provided guidance on a concept known as “plausibility,” i.e., whether the scope of the patent must be justified by the patentee’s technical contribution to the art in solving an identified problem. “If it is not plausible that the invention solves any technical problem then the patentee has made no technical contribution and the invention does not involve an inventive step.” Sandoz Limited v. Bristol-Meyers Squibb Holdings [2023] EWCA Civ 472. That standard, however, is quite dissimilar from the United States’ statutory standard of whether “the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious…”

UPC Milan Local Division Acts Fast to Address Alleged Infringement at Trade Fair

On June 12 and 13, 2023, the German giant textile company, Oerlikon Textile G.M.B.H. & CO. K.G. (Oerlikon), filed two applications with the Unified Patent Court’s (UPC’s) Milan Local Division to preserve evidence against two Indian companies accused of infringing the (Italian portion) of the European patent EP214848B1, which covers a “False twist texturing machine”. The defendants, Himson Engineering Private Limited (“Himson”), and Bhagat Group, were exhibiting two machines at a trade fair, bearing the trade names Machine 2 and Machine 2-TS, along with a machine bearing the trade name, Bhagat Textile Engineers.

Generics Advocates Blast UK Patent Proposals in UK-India Trade Deal

A letter sent to the United Kingdom’s International Business and Trade Secretary today urged scrapping proposals that health groups say would undermine the generic medicines industry in India. The letter refers to a leaked document that indicates the UK will be asking India to agree to a number of patent provisions as the two countries negotiate a trade deal today.