Patents for protecting others from harm?

Well that would be really nice, wouldn’t it? My daughter came home from school a few weeks ago and told me about one of her friends who had taken a bad fall on the playground and hit his head so badly he had to go to the emergency and get some stitches. She said, “I told him that he should patent that fall so that no one else can do the same.” Quite clever for a six-year-old I think!

However, as we all know, that is not really how it works with patents. She was correct in that the right acquired by a patent holder is a negative right, meaning that you can only prevent others from doing the same. For the case of falling and hitting your head it is, however questionable if that would be industrially applicable, and thus probably not patentable.

But are patents always used to actively stop others from copying your invention? Of course not – most patents are really never enforced.

Even though most patents are not used to sue competitors for infringement, doesn’t mean that they are never used. A patent can be used for many things, just as a scare tactic to keep competitors at an arm’s length (in essence a preventive measure), in marketing, in negotiations with investors, competitors or in joint-ventures, they can be sold and licensed. This means that a company can use their patent or patents when doing business, no matter how strong or weak the patent is.

For smaller inventors, there’s of course a great pride in the fact that you have your product patented, and many larger companies show off their extensive patent portfolios as proof of their inventiveness.

Some patents are really obscure, and some cover technologies that have changed the world. Having a good strategy for your patent and IP portfolio can be the difference between failure and success.

The final question is – what could patents and IP do for your business? Contact us at Awapatent and we can help you with your IP strategy!

Sofia Willquist, European Patent Attorney

Will there be any difference in the oral hearings between the EPO and the UPC?

Anyone who has been attending an oral proceeding at the EPO, either as an observer or as an active party knows what it’s like. You need to think fast and stay on your toes, and watch your language because every issue, often starting with added subject matter, is taken to a decision immediately. The proceedings may thus end much quicker than what you have prepared for. In any case the opposition division or the Board of Appeal, will usually have pointed out at least their preliminary opinion in a written statement some time before the hearing, but this is an opinion with emphasis on preliminary.

Before the Swedish Court of Patent appeals the proceedings are very different. The parties are asked to present their whole case, mainly focusing on maybe a few aspects that the court sometimes presents at the beginning of the hearing. The decision is then delivered sometime around four weeks after the hearing. This means that the hearing itself may be more comfortable, but you are never sure if you have made your point across to the Court.

A while ago, I participated in a mock trial before a Unified Patent Court, during a course in patent litigation at the CEIPI in Strasbourg. The mock trial was led by a very well respected and experienced German judge. The oral hearing was very interactive, the panel of judges expressed the main issues that they wanted the parties to focus their pleadings on at the beginning of the hearing. The Court also asked the parties questions throughout the hearing. Being a European patent attorney before that panel of judges thus meant that the capabilities of thinking fast and adjusting to the situation came well into play. At the closing of the hearing the Court deliberated and they then gave their decision orally. The written decision will take another few weeks to deliver.

If this is the way that the UPC will work when it is up and running, nobody really knows. It may be that this will be up to the different divisions, and how the panel of judges at that particular Court is used to working and performing their hearings.

One thing that is certain is that the whole procedure before the UPC is supposed to be as efficient and quick as possible, including the oral hearings, which are meant to last not more than one day. I think we can expect that the judges therefore will be more interactive, more open with the main issues, but that the parties probably will be given an opportunity to present their whole case before a decision is taken.

Sofia Willquist, European Patent Attorney

Spain’s actions against unitary patent protection dismissed

On May 5, a potential legal obstacle against the Unitary Patent and Unified Patent Court was removed when the Court of Justice of the European Union (CJEU) dismissed two Spanish actions against the regulation of the unitary patent protection. These actions, which were brought before the Court in March 2013, question two aspects of the regulation; 1) that the regulation is not in line with EU law, in particular with respect to the distribution of renewal fees, and 2) that the proposed translation regime is discriminatory (to Spain and others).

Regarding the issue of conformity with EU law, the Court finds that the EU legislature did not delegate any powers which are exclusively its own under EU law. The Court also notes that the Member States must be responsible for all implementing measures, especially as the EU is not a party to the EPC. Regarding the issue of translation regime, the Court admits that the regulation differentiates between languages, but considers this differentiation to be motivated by the purpose to make patent protection more accessible.

Personally, I am not surprised by the decision. The political will to put a “Community Patent” in place is strong, and it appears no legal principles will be allowed to stand in its way. Regarding the translations regime, I think the Court has got it quite right. On the one hand, it is certainly true that the system could be seen as unfair to Spain (just as it is to Sweden, Denmark, and any other country not having English, French or German as one of their official languages). On the other hand, it is just as certain that Europe can never grow economically strong while it is fragmented by language. If Europe is to maintain its position as one of the 4-5 most important markets, Europe must be perceived as one market. The European patent system is of course not the only relevant factor in this context, but it can be an important part of the puzzle.

The winding road of the Unitary Patent and Unified Patent Court now continues. For the system to enter into force, it must be ratified by 13 states, including France, Germany and Great Britain. So far, six states have ratified the agreement (France, Sweden, Denmark, Austria, Belgium and Malta), and at least the Netherlands are on their way.

The level and distribution of renewal fees remains as one of the major hurdles, not only because these issues are difficult to agree upon, but also because they will most likely determine the impact and speed of propagation of the new system. Currently, two different proposals have been presented, referred to as TOP4 and TOP5. Essentially, the proposals set the renewal fee level equal to the sum of the national renewal fees of the four or five most popular countries to validate European patents in. The TOP5 proposal has the extra twist of a 25% discount for SMEs (and some other applicants).

In my personal opinion, the cheaper TOP4 alternative is the better one, in order to make the system as attractive as possible. The idea of an SME discount of course sounds attractive, but I find the discount too small to have any significant effect. With renewal fees according to TOP4, I think the Unitary Patent will be quite attractive, at least from a renewal fee point of view.

Fabian Edlund, European Patent Attorney