Comments on: Aspects of the UPC (1): Transitional Scheme and Opt-Out http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/ Intellectual Property Observations Thu, 14 Nov 2013 21:31:32 +0000 hourly 1 http://wordpress.org/?v=3.4.1 By: Aspects of the UPC (1): Transitional Scheme and Opt-Out | ksnh::law | European Unitary Patent News | Scoop.it http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11953 Aspects of the UPC (1): Transitional Scheme and Opt-Out | ksnh::law | European Unitary Patent News | Scoop.it Thu, 14 Mar 2013 19:13:38 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11953 [...]   [...] [...]   [...]

]]> By: Abon http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11943 Abon Thu, 14 Mar 2013 10:40:50 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11943 I see. The UPC will handle infringiment and revocation for European patents except for Spain. European patents will need a translation for Italy, but infringiment and revocation will be handled by the UPC. European patents will need a translation for Spain, and infringiment and revocation will be handled by the Spanish national courts. I see.
The UPC will handle infringiment and revocation for European patents except for Spain.
European patents will need a translation for Italy, but infringiment and revocation will be handled by the UPC.
European patents will need a translation for Spain, and infringiment and revocation will be handled by the Spanish national courts.

]]> By: Volker 'Falk' Metzler http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11937 Volker 'Falk' Metzler Thu, 14 Mar 2013 09:51:02 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11937 No, unfortunately not. Non-unitary EP patents are either fully subject to UPC or - after opt-out - fully subjet to national jurisdictions. That is, both infringement and revocation (e.g. in form of a revication courterclaim) are handled nationally or by the UPC. No, unfortunately not. Non-unitary EP patents are either fully subject to UPC or – after opt-out – fully subjet to national jurisdictions. That is, both infringement and revocation (e.g. in form of a revication courterclaim) are handled nationally or by the UPC.

]]> By: Abon http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11936 Abon Thu, 14 Mar 2013 09:28:49 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11936 I see. Hence, in case of infringiment of a non-unitary European patent, there will be an infringiment action at the national court and a revocation action in front of the UPC. I see.
Hence, in case of infringiment of a non-unitary European patent, there will be an infringiment action at the national court and a revocation action in front of the UPC.

]]> By: Volker 'Falk' Metzler http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11904 Volker 'Falk' Metzler Wed, 13 Mar 2013 16:20:26 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11904 Correct. Once the transitional period is over and all opted out patents expired (i.e. Art 83 UPCA is not applicable any more) revocation actions according to Art 138 EPC will be handled by the Unified Patent Court as Art 32 UPCA provides the UPC with exclusive competence for all legal actions related to European Patents, whether Unitary or validated in selected states. Correct. Once the transitional period is over and all opted out patents expired (i.e. Art 83 UPCA is not applicable any more) revocation actions according to Art 138 EPC will be handled by the Unified Patent Court as Art 32 UPCA provides the UPC with exclusive competence for all legal actions related to European Patents, whether Unitary or validated in selected states.

]]> By: Abon http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11902 Abon Wed, 13 Mar 2013 12:33:10 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11902 I do not understand this passage: will the UPC in 2040 or 2047 be the ONLY responsible court for Revocation under Art. 138 EPC? I do not understand this passage: will the UPC in 2040 or 2047 be the ONLY responsible court for Revocation under Art. 138 EPC?

]]> By: Gibus http://blog.ksnh.eu/en/2013/03/13/aspects-of-the-upc-1-transitional-scheme-and-opt-out/#comment-11901 Gibus Wed, 13 Mar 2013 12:01:40 +0000 http://blog.ksnh.eu/en/?p=4298#comment-11901 <blockquote>As some observers have asked whether opting out from “exclusive competence” means opting out from the agreement as a whole, we tend to think that Art 32 sufficiently defines this term, as it provides an exhaustive lists of those legal actions for which the UPC has “exclusive competence” and which will fall back into the competence of national jurisdictions upon opt-out</blockquote>. There is one point missing here. The UPC agreement is not only about actions that can be brought before the UPC. Article 25 UPC defines direct infringements, Article 26 UPC defines indirect infringements, Article 27 UPC defines limitations thereof, Article 28 UPC defines prior-user rights, Article 25 UPC defines exhaustion of rights conferred. All these articles harmonise patent law in Contracting Member States (and by the way, out of Art. 114 TFEU), without any relation to the competence of the Unified Patent Court. Therefore, they will apply whatever the opt-in or opt-out from the UPC competence is.

As some observers have asked whether opting out from “exclusive competence” means opting out from the agreement as a whole, we tend to think that Art 32 sufficiently defines this term, as it provides an exhaustive lists of those legal actions for which the UPC has “exclusive competence” and which will fall back into the competence of national jurisdictions upon opt-out

.

There is one point missing here. The UPC agreement is not only about actions that can be brought before the UPC. Article 25 UPC defines direct infringements, Article 26 UPC defines indirect infringements, Article 27 UPC defines limitations thereof, Article 28 UPC defines prior-user rights, Article 25 UPC defines exhaustion of rights conferred. All these articles harmonise patent law in Contracting Member States (and by the way, out of Art. 114 TFEU), without any relation to the competence of the Unified Patent Court.

Therefore, they will apply whatever the opt-in or opt-out from the UPC competence is.

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