The amount of its profit the infringer will have to pay to the patentee as damages is calculated solely based on the profit earned by use of the intellectual property right. To determine this profit it must be assessed if, and to what extent this profit was due either to the invention’s technical features embodied…
In its recent judgment of 26 October 2012, the Spanish Supreme Court (Judge Rapporteur Mr José Ramón Ferrándiz Gabriel) has clarified an interesting point over which lower level courts offered diverging views over the last few years. The question is from which date are TRIPS’ provisions on patents applicable from the perspective of domestic law:…
In a decision issued November 1, 2012 in Exelixis, Inc. v. Kappos, the U.S. District Court for the Eastern District of Virginia found that the USPTO has been misinterpreting a provision of the Patent Term Adjustment (PTA) statute in a manner that under-calculates PTA for many patents in which a Request for Continued Examination was filed….
This past week I had an interesting hearing at the EPO where an opposition was based, inter alia, on public prior use. The opposition division heard a number of witnesses on the question whether the features of a specific device had been publicly available. Prior to the hearing, the opponent had to admit that there…
EPO practice on patenting plants knows two exclusions that are defined in Art. 53(b) EPC: the exclusion of “plant varieties”, and the exclusion of “essentially biological processes for the production of plants”. The recent referral G2/12 may change this practice and may lead to the exclusion of plants depending on how they were made. The…
As any practitioner who has come in contact with the Danish legal system in connection with disputes concerning IPR will know, until now, the complexities quite often involved in such cases have often proven difficult for Danish courts, especially enforcement courts, to handle. Consequently, it has for many years been a focal point of IPR…
According to Article 65 of the European Patent Convention (“EPC”), when the European patent granted is not drafted in one of the official languages of the EPC, any contracting state may require that the patent owner file a translation of the patent with the national patent service within 3 months of the publication of the…
On 10 October 2012, the Court of Appeal handed down its judgment in the case of MedImmune v Novartis*. This was the first of what is expected to be a series of decisions from the Court of Appeal over the next few months which will address how the question of obviousness should be tackled by…
As of September 16, 2012, third parties have been able to make “Preissuance Submissions” of printed publications in pending U.S. patent applications. To date, the USPTO has received just over 100 Preissuance Submissions. This article looks at important timing and disclosure requirements that parties considering making such submissions should keep in mind when deciding whether to…
Almost one year ago the European Court of Justice (CJEU) “clarified” the law on supplementary protection certificates. On November 24, 2011 it rendered its verdict in the “Medeva” case (C-322-10). One should not forget that “Georgetown” (C -422/10) was rendered on the same day and only one day later, the Yeda (C-518/10), Queensland (C-630/10) and…
