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Grace period conflict – Can the UK join the CPTPP and stay in the EPC?

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Is the UK on the road to the CPTPP?

Back in June this year, the UK announced its intention to start negotiations to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). For a country that is separated from continental Europe by a mere 21 miles, joining the CPTPP might raise the odd eyebrow. The purpose of this article however is to look at the possible impact that joining the CPTPP might have on the UK’s patent system.

As explained in more detail in this post on the Keltie website, the CPTPP expects signatories to the agreement to provide for a 12-month grace period for patents. The UK is also a signatory of the European Patent Convention which does not provide for a grace period of this nature. On the face of it there appears to be some conflict between the provisions of the CPTPP and the EPC. (more…)

Obstacles remain for the Unitary patent system and the Unified Patent Court

IMG_8533-1Last week ratification legislation for the Unified Patent Court Agreement (UPCA) entered into force in Germany. This move follows years of delays caused by challenges to the UPCA in the German Federal Court.

On the face of it, the path to a functioning unitary patent system seems clear and a new operational start date of “around mid-2022” has been published by the UPC Preparatory Committee. However, a number of further steps and obstacles remain, some of which seem more than just formalities. (more…)

The Covid “patent” waiver – solution or distraction?

cdc-jgvTYz6UT_g-unsplash (1)Around 25% of the population of the world is under 15 years of age. With around 7.9 billion people on Earth, that means there are approx. 5.9 billion adults on this Blue Marble. Assuming all these adults are given a 2-shot Covid vaccine around 12 billion doses are required to vaccinate 75% of the World’s population. Although somewhere north of 8.6 billion doses have apparently been ordered there is an obvious imbalance in the distribution of vaccines.

This imbalance in vaccine distribution gave rise back in October last year to a proposal from India and South Africa for a waiver from certain Intellectual Property provisions of the TRIPS Agreement. In recent weeks the clamour for such a waiver to be approved has increased and is often presented as the solution to the problem “we’re not safe until we’re all safe”. In the last week, the US apparently reversed its long standing position against such waivers when Ambassador Katherine Tai announced that the US would support waiving intellectual property provisions for COVID-19 vaccines.

However, will such an IP waiver (also referred to in the press as a “patent waiver”) be the silver bullet solution to vaccine shortages that it’s being portrayed as? (more…)

EPO: Zoom video conferencing before opposition divisions

The coronavirus pandemic has pushed many of us to use video conferencing platforms in place of face-to-face meetings. At the EPO, oral proceedings before the examining division are now the default but there’s also a pilot program for using video conferencing (ViCo) for oral proceedings involving multiple opponents and/or requiring simultaneous interpretation before the opposition divisions. Whereas Examining Division ViCos use the Skype for Business platform, ViCos held in opposition take place over Zoom.

The EPO recently held a couple of information sessions to highlight the use of the Zoom platform and we have extracted a few points from that session along with the feedback from a ViCo Opposition that Keltie has taken part in.

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So Long, and Thanks for All the Fish: the UK withdraws from the Unitary Patent project

On 20 July 2020 the UK made a statement in Parliament that it had withdrawn its ratification of the Agreement on a Unified Patent Court. As noted on the Unified Patent Court website the UK also deposited a withdrawal notification with the Council Secretariat. The UPC Preparatory Committee has stated it will now discuss the consequences of the UK withdrawal and agree a way forward.

Given the UK Government’s view of the CJEU, the statement doesn’t come as a huge surprise though it will presumably be a disappointment for those UPC supporters who were holding out hope that the UK and the other participants would work out some way for the UK to stay in the system.

The UK’s withdrawal from the UPC is, of course, not the only issue to hit the unified patent court project this year as the German Constitutional Court found that the German ratification legislation was unconstitutional.

What comes next for the unitary patent project is unclear. While the system still has its supporters who continue to say that the system could go live as early as [Readers should insert today’s date plus 6-12 months] there are a number of matters that are unclear, namely:

  • Is the UK’s withdrawal notification sufficient? The UPC Agreement does not have any withdrawal provisions but the Vienna Convention on the Law of Treaties does provide mechanisms for withdrawal from treaties with no withdrawal provisions. Whether the UK’s withdrawal is currently effective may be unclear however and may require amendment of the Protocol to the Agreement on the UPC on provisional application.
  • Where will the London seat of the Central Division be relocated to? Although the provision governing when the UPC Agreement comes into effect does not mention the UK (see Article 89 UPCA), Article 7 which relates to the Court of First Instance does explicitly mention the UK and Annex II to the Agreement details the technical split in cases between London, Paris and Munich. Will the UPC Agreement require amendment to remove the references to London and, if not, will other interested countries (e.g. the Netherlands, Italy) be happy for the system to come into effect without first dealing with this issue?
  • How attractive will the unitary patent system without the UK be for applicants? Also, will the renewal fees for the Unitary Patent need revising in light of the UK’s departure?

The UK announcement is the latest in a line of setbacks for the system. IPcopy remembers the pan-European Intellectual Property Summit way back in December 2012 where the keynote speech suggested that all the stops would be pulled out in order to allow the first unitary patent to be granted in Spring 2014(!) and yet here we are, some 6 years beyond that point, with no real end in sight for the ratification process.

Mark Richardson 8 September 2020

 

EPO: Video conferencing before Opposition Divisions

home-office-5026080_1280IPcopy understands that the EPO’s pilot project for oral proceedings by videoconference before opposition divisions is to receive an upgrade from 14th September 2020 to allow multi party hearings and interpreters.

From 14th September and until at least the end of 2020 oppositions with a single opponent with no interpreters will be conducted under the Skype for Business platform. Oppositions with multiple opponents and/or interpreters will be conducted on the Zoom platform. (more…)

Welcome to the Sunlit Uplands – 10 things about Brexit and IP

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With the Coronavirus pandemic dominating the headlines you might have assumed that Brexit was all finished. However, there’s still plenty to be aware of as far as the UK’s departure from the EU is concerned. So, here are 10 things you need to know about Brexit and Intellectual Property. (more…)

Artificial Intelligence and Patents: AI inventors

Samantha Walker-Smith and I have made a video discussing the issue of AI inventors in light of the DABUS patent applications. [This video is subtitled.]

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Patents and the Internet of Things

Here’s a brief video (subtitles available) looking at some of the issues that might be encountered when protecting innovation in the “Internet of Things”.

Mark Richardson 24 June 2020

IP Tips: Reducing patent spend (in light of Covid-19)

Here’s a few thoughts I recorded a couple of weeks ago (in 60 seconds against a stopwatch!) for reducing patent spend in light of challenges resulting from the Coronavirus pandemic. This video is subtitled.

Mark Richardson 16 June 2020