The FCJ held that the Defendant in a nullity action is only required to prepare an auxiliary request following the preliminary opinion of the Federal Patent Court which takes those aspects into consideration which were mentioned by the Patent Court. In general, there is no reason for the Defendant to prepare additional auxiliary requests with…
A panel of the Enlarged Board of Appeal (EBA) of the EPO rejected a request to replace the EBA chairman for suspected partiality. The reasons for allowing such a request in decision R19/12 had since been removed because the chairman had discontinued all his managerial activities in the senior management committees of the EPO. Under…
The Bundesgerichtshof (German Federal Court of Justice) in the decision Audiosignalcodierung (judgement of 3 February 2015, X ZR 69/13) confirmed the principle established in the Bundesgerichtshof decision Funkuhr II, according to which the delivery of a product to a third party in a territory outside of Germany constitutes a patent infringement in Germany if the…
Myles Jelf (Bristows LLP) talks about the difficulty with software patents. The difficulty arises from a need to identify the dividing line between the pure algorithm which should not be patentable and a technical invention which happens to use a computer. There are three different definitions between the UK, EPO and theUS. The EPC Article…
John Richards (Ladas & Parry LLP, New York) identifies the problem that filing a patent involves a prior art search which is probably not as focussed as searched that occur in litigation and therefore the patent might require later amendment. The Patent Trial and Appeal Board (PTAB) takes a very strict approach to amendment in…
Penny Gilbert from Powell Gilbert LLP explains the position of biosimilars in the pharmaceutical industry. Biosimilars are essentially generic versions of biologics. Traditional generic compounds are chemical reproductions of the patented compound which makes regulatory approval more straightforward. Biological compounds (proteins or antibodies which are produced from genes) are not identical with one another and…
Adam Mossoff (Professor of Law, George Mason University) states that much of the focus in the USA is around litigation, but patents are not simply tools for litigation, they are commercial assets. Litigation is more public than confidential private transactions and therefore has disproportionate focus. He remarked that the ‘sewing machine wars’ of the 1850s…
Justin Watts (Freshfields) asked whether the strict test for priority fails to appreciate the early stage at which the inventor will be enunciating the invention (often in multiple jurisdictions). He refers particularly to the decision of G2/98 which is that one has to understand the application as a whole through the eyes of the skilled…
Marleen H J van den Hors (BarentsKrans in the Netherlands) dealt with the interesting question of enforcement of second medical use patents and suggested that regulatory changes might be required to facilitate enforcement. She pointed out that there has been different interpretations of Swiss-style claims in the Netherlands and the UK leading to a different…
There has been an explosion of anti-trust cases at the EC, which is of concern to the Deputy Director for Antitrust (European Commission) Cecilio Madero Villarejo. Some of these cases involve non-EU companies. It is the view of the EC that IPRs can be exercised in a way which falls foul of competition principles. He…
