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Author: Léon Edward Dijkman Publisher: ISBN: Category : Patent laws and legislation Languages : en Pages : 0
Book Description
This thesis investigates the limitations that the proportionality test imposes on a patentee's entitlement to injunctive relief under European Union (EU) law. It has long been established orthodoxy that a patentee whose valid patent is infringed is entitled to injunctive relief requiring immediate termination of the infringement. In recent years, however, that orthodoxy has come under fire. Industry stakeholders and legal scholars worry that in some circumstances such injunctions can have disproportionate effects. Courts seem receptive to these concerns. The European Court of Justice (ECJ) has emphasised that courts must make case-by-case assessments when issuing remedies for intellectual property (IP) infringements. National courts have followed suit and acknowledged that exceptions exist to the patentee's entitlement to injunctive relief. The tide is therefore clearly turning, but little is known about this proportionality test's substance. This thesis makes the case for a European proportionality framework with three dimensions: overreach, abuse, and conflicts with rights of third parties. Underlying each element of the framework is the principle that a patentee's effective sphere of exclusivity should be commensurate with their inventive contribution. The framework's scope is circumscribed not only by this principle but also by the problems with contemporary patent law that proportionality can legitimately be called upon to resolve. It derives from EU law and its principal legal basis is Directive 2004/48/EC (the Enforcement Directive). The ambition of this thesis is to offer a proportionality framework that is workable for patent courts, predictable for litigants, effective in practice, and in conformity with EU law. It hopes to be a source of inspiration in years to come for courts and scholars as they grapple with the limits that proportionality must set on patent enforcement. --
Author: Léon Edward Dijkman Publisher: ISBN: Category : Patent laws and legislation Languages : en Pages : 0
Book Description
This thesis investigates the limitations that the proportionality test imposes on a patentee's entitlement to injunctive relief under European Union (EU) law. It has long been established orthodoxy that a patentee whose valid patent is infringed is entitled to injunctive relief requiring immediate termination of the infringement. In recent years, however, that orthodoxy has come under fire. Industry stakeholders and legal scholars worry that in some circumstances such injunctions can have disproportionate effects. Courts seem receptive to these concerns. The European Court of Justice (ECJ) has emphasised that courts must make case-by-case assessments when issuing remedies for intellectual property (IP) infringements. National courts have followed suit and acknowledged that exceptions exist to the patentee's entitlement to injunctive relief. The tide is therefore clearly turning, but little is known about this proportionality test's substance. This thesis makes the case for a European proportionality framework with three dimensions: overreach, abuse, and conflicts with rights of third parties. Underlying each element of the framework is the principle that a patentee's effective sphere of exclusivity should be commensurate with their inventive contribution. The framework's scope is circumscribed not only by this principle but also by the problems with contemporary patent law that proportionality can legitimately be called upon to resolve. It derives from EU law and its principal legal basis is Directive 2004/48/EC (the Enforcement Directive). The ambition of this thesis is to offer a proportionality framework that is workable for patent courts, predictable for litigants, effective in practice, and in conformity with EU law. It hopes to be a source of inspiration in years to come for courts and scholars as they grapple with the limits that proportionality must set on patent enforcement. --
Author: Léon Dijkman Publisher: Bloomsbury Publishing ISBN: 1509973621 Category : Law Languages : en Pages : 299
Book Description
Does a European patent always entitle its holder to a permanent injunction? This question has sparked vigorous debate in past years but so far remains unresolved. This open access book presents a detailed, practical, and comprehensive test to determine when injunctive relief should be limited on proportionality grounds. The book's 3 parts guide readers from proportionality's normative foundations to its practical applications. Part I argues that, contrary to conventional wisdom, proportionality is not an open-ended balancing test but rather applies the principle of commensurate scope at the remedies stage. Part II offers an in-depth analysis of situations where a permanent injunction risks upsetting that principle. It draws on a unique qualitative study of all US District Court decisions between 2006 and 2020 granting or denying a permanent injunction in patent cases to stake out circumstances where an injunction might have disproportionate consequences. Part III grounds the inquiry in EU law and proposes a proportionality test along three elements: overreach, abuse, and conflicts with third-party rights. The book thus provides a distinctly European response to a global problem. The book is an invaluable resource for practitioners, clerks, and scholars looking not only for the normative, empirical, and legal basis of proportionality in European patent law, but also for guidance on its real-world operation. The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.
Author: Stefan Luginbuehl Publisher: Edward Elgar Publishing ISBN: 9780857933218 Category : Law Languages : en Pages : 361
Book Description
The book is explaining in detail the current discussion regarding the unification of European patent law. It explains the current national legal practices in Europe, describing the legal and factual issues and the different approaches to achieve unification. The book manages to show the complex situation and the different opinions from the beginning of the discussion in a clear and comprehensive manner without requiring previous knowledge of the reader and is therefore to be recommended for everyone interested. Jochen Pagenberg, LL.M. Harvard, President EPLAW, Germany and Thomas Schachl, LL.M., Attorney-at-law, Germany In his detailed study, Stefan Luginbuehl critically examines the latest efforts to establish a common European and EU patent litigation system and suggests possible alternatives to such a system. Due to the lack of a European patent court, both the EPO and national judges interpret European patents and European patent law. This results in diverging interpretation across Europe and costly litigation for patent holders. Stefan Luginbuehl s proposals to promote the goal of a uniform interpretation of patent law and ease the difficulties are timely and highly insightful. Dealing with important legal and political issues related to European patent litigation and the establishment of a common patent litigation system, this book will appeal to practitioners, patent litigators, patent attorneys and judges specialised in patent litigation. Academics teaching and learning IP (patent law), private international law, or international civil procedure, will find this study interesting as the book deals with important aspects of national and international patent litigation, as well as procedural and structural questions related to the establishment of a patent court for Europe.
Author: Duncan Matthews Publisher: Walter de Gruyter GmbH & Co KG ISBN: 3110781719 Category : Law Languages : en Pages : 396
Book Description
This book provides a comprehensive overview of European Patent Law. It presents a critical analysis of the European patent law system and the proposed changes to it. The book explores the strengths and weaknesses of the European Patent Convention, and the interaction between the national and the European level, as well as across borders.
Author: Winfried Tilmann Publisher: Oxford University Press ISBN: 0191071927 Category : Law Languages : en Pages : 3041
Book Description
The creation of the Unified Patent Court (UPC) is the most prominent change in the European legal landscape for the last four decades. This book explains how the new system works in practice and how to make the best use of its provisions. It offers readers an in-depth and comprehensive commentary on the legal mechanisms of the upcoming ratified European Patent Law, and advice on potential problems that users of the forthcoming regulations may face. The book first describes the creation of the Unified European Patent Law and how its four new legislative texts interact. The new legislative texts are then explained and commented on in detail, rule by rule, with diverse approaches and perspectives from a practitioner team comprising patent litigators, European patent attorneys, law professors and patent judges. The Commentary takes into account the practical needs of users of the new system on both the prosecution and enforcement sides, addressing substantive and procedural problems. This book is the most authoritative text on the Unitary Patent and Unified Patents Court, and an invaluable tool for practitioners in this rapidly developing area of law.
Author: Ian Muir Publisher: Oxford University Press, USA ISBN: 9780199254279 Category : Law Languages : en Pages : 450
Book Description
This text provides an analysis of European patent law and procedure (including practice under the PCT) and examines the provisions and case-law of the European Patent Convention, the Patent Law Treaty, and Community Patent.
Author: A. Nickel Publisher: Kluwer Law International B.V. ISBN: 9041194398 Category : Law Languages : en Pages : 369
Book Description
Far more than a revised update, this new edition of a well-received guide to US patent law is twice as valuable to European patent practitioners as the previous edition. It is virtually a brand new book. The author, drawing on her recent years at a US firm, has augmented each chapter with practical information – including lines of argumentation to overcome obviousness rejections – and added new chapters, as well as much more detail on petitions and appeals, post-grant proceedings, and litigation. The new edition tells European practitioners not just about the framework of US patent law, but how it is applied. No other such book exists. With an overview of options at each stage of US patent prosecution and enforcement – with particular emphasis on its differences from the EPO system – the new edition details the available courses of action for all the procedural scenarios a European patent attorney is likely to encounter. The coverage is loaded with practical guidance on such aspects of US patent law and procedure as the following: · drafting applications and filing them at the US Patent Office; · applying provisions of the America Invents Act of 2011; · possible responses to a Final Office Action; · costs, fees, and time periods for various procedural actions; · using the US Manual of Patent Examination Procedure (MPEP); · declarations, oaths, and affidavits; · the Quick Path Information Disclosure Statement (QPIDS); · submissions on patentability by third parties; and · supplemental replies during examination proceedings. Every step in the process is described and directly compared as it operates under both the European Patent Convention (EPC) and US patent law. Any practitioner who has unsuccessfully tried to pursue in the US claims that were granted in the EPO will gain a new understanding of the reasons why – and what to do about it. In this highly practical, one-of-a-kind book, European patent professionals will find, detail by detail, exactly what is required at every stage of patent proceedings in the US. There is no other available source of such instantly accessible information for European patent lawyers, in-house counsel and paralegals, or EPC or national patent office officials, to all of whom this book will be of immeasurable value and usefulness. Intellectual property law academics and students will also benefit from the book’s comparative approach.
Author: Richard Hacon Publisher: Kluwer Law International B.V. ISBN: 9041145192 Category : Law Languages : en Pages : 769
Book Description
In our technological society patent law plays a central role as an incentive for the development and marketing of new technologies in many fields of business. The number of patent applications continues to grow considerably every year. International and European conventions and other instruments have been implemented in order to simplify the application for and enforcement of patents and which also govern the scope of protection afforded by a patent in Europe. Others are being planned. This second edition of Concise European Patent Law aims to offer the reader a rapid understanding of all the provisions of patent law in force in Europe that have been enacted at the European and international levels. This volume takes the form of an article-by-article commentary on the European Patent Convention and the relevant European Community legislation and international treaties. It is intended to provide the reader with a short and straightforward explanation of the principles of law to be drawn from each provision, with references to the most important case law. Editors and authors are prominent specialists (both academics and practitioners) in the field of international and European patent law. Concise European Patent Law, second edition is one of a series of volumes of commentary on European Intellectual property legislation edited by Thomas Dreier, Charles Gielen and Richard Hacon, based on the respected German and Dutch series ‘Kurzkommentar and Tekst en Commentaar.’
Author: European Patent Organisation Publisher: Good Press ISBN: Category : Fiction Languages : en Pages : 50
Book Description
The European Patent Convention (EPC) is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. A European patent is not a unitary right, but a group of essentially independent nationally enforceable, nationally revocable patents.
Author: Hoffmann · Eitle Publisher: Hoffmann · Eitle ISBN: Category : Law Languages : en Pages : 580
Book Description
A new patent right for Europe (the European Patent with Unitary Effect) and a new European enforcement and invalidation regime (the Unified Patent Court) are expected to come into operation soon, potentially as early as 2015. Existing patents granted by the European Patent Office (EPO), as well as those granted in the future, will automatically come under the jurisdiction of the new Court, unless opt-out rights are exercised. These measures represent one of the most complex and ambitious legal reforms in the field of European intellectual property since the creation of the EPO in 1977. For applicants and proprietors used to the current European system of national patents and national courts, the new system will present both opportunities and challenges in developing, maintaining and leveraging a cost-effective patent portfolio. For manufacturers, distributors and end-users, the new system will subject their activities to the jurisdiction of a new court, with unique and possibly unfamiliar powers and procedures. Decisions must therefore be made as to how best to take advantage of the possibilities afforded by the new system. Applicants and proprietors are already asking themselves questions such as: Should I start to register European patents as European Patents with Unitary Effect when they become available, or should I continue with national validation? For which European patents and applications should I make use of the opt-out to keep litigation in the national courts? Should I consider reverting to national filings instead of using the EPO? How will the new Unified Patent Court be structured, and how will it work? What choices will I have in future as to where to litigate – should I choose a national court or the UPC to enforce or invalidate a European patent? This Handbook provides both guidance for the strategic decisions which will have to be taken and a detailed reference manual to the law and practice of the new system.
Author: Léon Edward Dijkman
Author: Léon Edward Dijkman
Author: Léon Dijkman
Author: Stefan Luginbuehl
Author: Duncan Matthews
Author: Winfried Tilmann
Author: Ian Muir
Author: A. Nickel
Author: Richard Hacon
Author: European Patent Organisation
Author: Hoffmann · Eitle