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Unitary Patent Package – Rules of Procedure for the Unified Patent Court (14th Draft)
As noted in our tweet last week the 14th draft of the Rules of Procedure of the Unified Patent Court have appeared online (a copy can be found here). The document runs to almost 150 pages and 382 rules so it’s something of an early Christmas present for insomniacs.
The release of the 14th draft is expected to shortly be followed by the public consultation exercise on the rules of procedure. IPcopy understands that the window for public comments could be as short as one month and we will let you know as soon as we hear more. It is noted that page 2 of the 14th draft states that it is the aim of the Drafting Committee to complete the draft rules within three months of the signature of the Agreement (which is expected to happen on 19th February).
Falling out over sweets?
Haribo v Lindt – Gold Bear vs Gold Foiled Teddy
On 18 December 2012, the Regional Court of Cologne decided that Swiss Confectioner Lindt’s gold foiled teddy amounted to a visual representation of German sweet maker Haribo’s famous Gold Bear.
The court held that the visual similarities would cause connotations with Haribo’s bears and upheld Haribo’s claim against the distribution of Lindt’s bears in Germany.
In the case, Haribo argued that its bears and its word trade mark for ‘Goldbär’ (German for gold bear) was known to 95% of the relevant German consumer. Lindt argued that the gold foil and red ribbon followed the form used on its chocolate bunnies and invited the court to find that the competing products did not look similar and that consumers would not be confused.
However, the courts agreed with Haribo’s view and said that consumers would refer to Lindt’s bear as the ‘gold bear’ due to its visual appearance. They held that this would result in a dilution of Haribo’s rights.
The courts have allowed an appeal on the basis that there has so far been no ruling by the German Federal Supreme Court on the question of a conflict between a word mark and a three-dimensional product design.
Lindt have appealed the decision to a higher court and a decision is expected soon.
Azhar Sadique 8 February 2013
Unitary Patent Package – The Ratification Game (The UK completes its ratification formalities)
Update (26 April 2018)
According to the website of the Council of the European Union (and just about every other official IP channel), the UK deposited its instrument of ratification (on 26 April 2018) to become the 16th country to complete its ratification formalities. The UK joins Latvia, Lithuania, Estonia, Italy, the Netherlands, Bulgaria, Finland, Portugal, Luxembourg, Malta, Denmark, Belgium, Sweden, France and Austria as one of the sixteen countries who have completed their ratification processes.
The unitary patent system requires 13 countries to ratify, including the UK, France and Germany. However, the German Constitutional Court challenge has thrown the timescale and the long term future of the unitary patent system into doubt.
There are now enough countries to have ratified the unified patent court agreement that the system will come into effect if Germany completes its own ratification procedures and sufficient approvals to the PPA are obtained.
Now that the UK has completed all of the formalities we have updated our ratification infographic (for an answer to the question “What’s up with this infographic?“, please see the bottom of the post!”).
EPO proposes changes to search rules [Updated – 11/11/13]
The European Patent Office is proposing to amend the rules regarding searches for Euro-PCT applications. The aim of the proposed changes is to make the Euro-PCT system fairer for applicants of international applications who use the EPO as the International Searching Authority. A further aim is to bring Euro-PCT search practice into line with direct European practice.
Unitary Patent Package – Timeline of events for 2013/2014
The much heralded unitary patent package* appears to be moving towards implementation after many years of proposal and counter-proposal.
Looking ahead, the various parts of the package are likely to come into force in 2014 (according to the official timescale anyway). Over the coming 12-24 months, there are a number of keys dates to note.
Unitary patent package – alternative description using 1000 most common words only
In an earlier post we recast an Apple patent claim into “up-goer-five” style by rewording the claim using only the 1000 most common words available (according to this xkcd comic). We weren’t planning on revisiting this style of drafting but ipcopyemily worked up a description of the unitary patent package for the IPcopy team’s amusement and I thought it was too good not to share. So, without further ado, here’s the unitary patent package in “up-goer-five” format. You might think it makes more sense than the real version but I, of course, couldn’t possibly comment.
This is the last time we’ll do this…..promise…..probably…..
The Tale of Two Hobbitses
Bagginses? What is Bagginses?… Precious
The Hobbit studios Warner Bros., New Line Cinema, MGM and producer Saul Zaentz have moved to block the further circulation of Global Asylum’s recently-released Age of the Hobbits film by filing a lawsuit in the U.S. District Court.
Despite including a disclaimer within the strapline of its film (“They’re not Tolkien’s Hobbits… They’re Real”), Asylum have been accused of “…promoting and advertising its low-budget film using the confusingly similar and misleading title Age of the Hobbits, in an intentional and willful attempt (i) to trade on the popularity and goodwill associated with the Tolkien novels, the extraordinarily successful Lord of The Rings film trilogy, and the famous HOBBIT mark, (ii) to free-ride on the worldwide advertising campaign in connection with the forthcoming Hobbit films, and (iii) to divert customers and potential customers away from the Hobbit films”.
Patent claims ‘up-goer five’ style – a vocabulary of the one thousand most common words
This IPCopy writer suspects she’s not the only avid xkcd follower in the IP world (for the uninitiated, click here, and say goodbye to the rest of your afternoon).
In a particularly beautiful piece of linguistic manipulation, xkcd recently explained the workings of the Saturn V rocket using only the thousand most commonly-used words in the English language, in its comic entitled ‘up-goer five’. Proof, if ever it were needed, that in the hands of a creative mind, the most complex ideas can be expressed using the simplest terms.
It strikes this IPCopy writer that this entertaining concept is at the heart of the patent drafting process. Restricting yourself to a vocabulary of one thousand words may not win you awards for claim drafting any time soon, but the process could be a very useful (as well as entertaining) training exercise.
Why Malta could inadvertently block your unitary patent
You may have noticed that over here at IPCopy, we’ve been playing with the Unitary Patent Regulation, and testing it to its limits. We’ve already noted some quirks, including the fact that a patentee could potentially opt out of the unified patent court until 2047, and that if an infringement action is brought by an exclusive licensee, bifurcation is all but forced on the defendant.
But this is perhaps the one that’s baked IPCopy’s collective noodle the most so far: assuming that ratification (of the unified patent court agreement) proceeds in time for the Unitary Patent Regulation to come into force 1 January 2014, it appears to us that around one third of the patents that grant that year, and potentially even as many as half, will not actually be eligible for unitary patent protection*.
“How can this be?” I hear you cry! Well it’s all Malta’s “fault”, and here’s why… [we cannot help but think we’ve missed something in the analysis below so feel free to chip in with your thoughts in the comments section!]
Unitary Patent Package – does Article 47(5) of the UPC Agreement hardcode bifurcation?
One of the most frequently-discussed concerns regarding the unified patent court agreement is the possibility of bifurcation*. This has, in turn, lead to concerns in some quarters that local divisions of the unified patent court could set themselves up to be patent proprietor friendly but send validity counterclaims back to the central division. In such scenarios, the argument goes, a patent owner could secure an injunction in the local division based on the issue of infringement that would have effect across the whole of the unitary patent area before validity has even been heard in the central division.
Regardless of the above “doomsday” scenario, however, it is noted that according to the UPC agreement the defendant will be able to raise validity as a counterclaim within an infringement action. It will then be up to the local division in question as to whether they hear both infringement and validity (I&V) or whether they kick the validity part of the action back to the central division (and thereby create a bifurcated case). [This IPcopywriter has assumed (probably naively) that local divisions will probably follow the practice of the country within which they are set up.]
However, on a review of the final text of the UPC agreement, we have come across a particular scenario, written explicitly into the agreement, in which the defendant is apparently not even able to raise validity as a counterclaim in an infringement action. We are referring to Article 47(5) UPC agreement and the scenario where an exclusive licensee brings an infringement action.
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