Patent Law Practice Center

Top 5 Patent Law Blog Posts of the Week

Today we continue our weekly installment highlighting the best of the patent blogosphere from the past week. If there are any patent blogs you think should be highlighted by our Top 5, please comment on this post and we’ll check them out.

1) Patently-O: Deference to BPAI: Federal Circuit Affirms Ruling that Monsanto’s Late-Filed Claims Win Priority over Pioneer’s Issued Patent – This post discusses the background and interference claim in Pioneer Hi-Bred International, Inc. (“Pioneer”) v. Monsanto Technology LLC, and how appellate panel gave clear deference to the USPTO Board of Patent Appeals and Interferences – repeatedly focusing on whether the board committed reversible error rather than jumping to the underlying question of whether the Board made the correct decision. (more…)

Long-Awaited EU Unitary Patent Possible As Prospects Brighten

There has been much speculation as to whether or not the EU will create a unitary patent protection as well as a unified patent litigation system. Our friends at Foley & Lardner sent in this article discussing the status of the unitary patent and the likelihood that a  final political agreement will be reached.

Previous Attempts to Create a Unitary Patent Protection

The proposal was reformulated in 2009, after the entry into force of the Lisbon Treaty, which introduced a new legal basis for the creation of EU IP rights. According to article 118 of the TFEU¹, the creation of European IP rights follows the co-decision procedure, where the European Parliament must vote on the Commission’s proposal, and the Council votes by qualified majority. However, any language arrangements for the European IP rights require unanimity in the Council and only the consultation of the European Parliament.

Even though a general approach was agreed on in late 2009, between the EU ministers, regarding the creation of the EU patent, the translation arrangements remained out of the scope of the agreement. Discussion on the translation arrangements continued throughout 2010. However, it soon became clear that the required unanimity would not be reached. In light of this, several member states showed interest in establishing an enhanced cooperation between themselves. (more…)

Patent Litigation Forum Shopping in the EU

Our friends at DLA Piper sent in this article discussing the current European patent system and how unfortunately the goal of consistent interpretation throughout member states is not always achieved.

A granted European patent provides the owner with a bundle of independent, national patent rights for those EU member states in which the patent has been validated. Once the period for the centralized procedure has passed, patents are generally enforced or revoked at a national level. In some national courts (for instance, the UK and the Netherlands), validity and infringement proceedings are commonly heard together, whereas other nations (notably, Germany) have separate courts to determine validity and infringement.

The European Patent Convention provides the central legal framework and sets out the substantive basis for determining ownership, patentability and infringement for European patents. The Protocol to Article 69 of the EPC provides some guidance; however, interpretation of substantive issues is left to the national courts. Although the goal is consistent interpretation throughout member states, individual national courts apply the principles differently. (more…)

Europe’s Approach To Patentability Of Business Methods

This post comes courtesy of our friends at DLA Piper, George Godar (Partner in DLA Piper UK’s London office in the Technology, Media and Commercial group) and David Alberti (Partner in DLA Piper’s Silicon Valley office. He  focuses on patent litigation, prosecution and counseling). 

The issues raised in the recent United States Supreme Court Bilski decision are not exclusive to the US. Europe has been considering these issues for years and has still not reached a conclusion accepted by all signatory countries to the European Patent Convention. 

Under the EPC, rules and methods for performing mental acts and doing business, or a program for a computer, are excluded from patent protection if the claims of the patent relate to that thing as such. The European Patent Office (EPO), and national courts, have wrestled with these exclusions. The solutions they have reached may be pragmatic but are not always mutually consistent.   (more…)