Transitions in European Patent Law

Name: Transitions in European Patent Law | Influences of the Unitary Patent Package
Brand: Kluwer Law International
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Influences of the Unitary Patent Package

Rosa Maria Ballardini Marcus rd(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 26. Juni 2015

352 Seiten

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978-90-411-6606-7 (ISBN)

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Cover
Half Title Page
Title Page
Copyright Page
Editors and Contributors
Table of Contents
Preface
PART I Introduction
CHAPTER 1 European Patent Law: The Case for Reform
§1.01 INTRODUCTION
§1.02 FROM EUROPEAN COMMUNITY PATENT TO UNIFIED PATENT PACKAGE: HISTORY AND OBJECTIVES OF THE REFORMS
§1.03 THE FINAL PACKAGE
[A] European Patent with Unitary Effect and Enhanced Role of the EPO
[B] Enforcing European Patents: The UPC
[C] Legitimacy of the New System
PART II European Patent Reforms: General Perspectives
Chapter 2 Patent Reforms at Both Sides of the Atlantic: An Analysis of the Patent Package and the America Invents Act through the Lens of 'Dynamic Patent Governance'
§2.01 INTRODUCTION
§2.02 DYNAMIC PATENT GOVERNANCE
[A] Heterogeneity of Formal Actors
[B] Heterogeneity of Informal Actors and Interaction between Formal and Informal Actors
§2.03 PATENT REFORMS IN EUROPE AND THE US: ANALYSIS OF THE HISTORY, REFORM PROCESSES AND OBJECTIVES
[A] The Patent Package: Analysis of the History, Reform Process and Objectives
[B] US AIA: Analysis of the History, Reform Process and Objectives
§2.04 CONCLUDING REMARKS
CHAPTER 3 The Unified Patent Court (UPC) in Action: How Will the Design of the UPC Affect Patent Law?
§3.01 INTRODUCTION
§3.02 THE FUTURE ROLE OF THE UPC
[A] Patent Law and Patent Policy
[B] The UPC and the European Patent Organisation
[C] The UPC as a Central Policymaker
§3.03 CHALLENGES CAUSED BY THE INSTITUTIONAL DESIGN OF THE UPC
[A] Policy Implications from Specialization
[1] Judges of the UPC
[2] Policymaking and Biases: The US Experience
[B] Specialization in Action
[1] Ordre Public and Morality
[2] Discussion
[C] Scope of Protection
[1] Discussion
§3.04 CONCLUSION
PART III The Substantive Patent Law Framework
CHAPTER 4 Legal Certainty and Software Patents: A European Perspective
§4.01 INTRODUCTION
§4.02 CAUSES OF UNCERTAINTY
[A] Intrinsic Characteristics
[B] Acquired Characteristics
§4.03 UNCERTAINTIES WITH THE REQUIREMENT OF TECHNICALITY
[A] Invention and Inventiveness in the Law
[B] Interpreting Invention and Inventiveness
§4.04 CII AND AHA: SOME EMPIRICAL EVIDENCE
[A] Quantitative Study
[1] Data Analysis
[B] Qualitative Study
[1] AHA and Invention
[2] AHA and Inventiveness
[C] Conclusion
§4.05 CII PATENT UNCERTAINTIES AND THE EU UNITARY PATENT PACKAGE
[A] EPO and UPC Joint Efforts towards Keeping the Inventiveness Threshold High
CHAPTER 5 The Unified Patent Court and the Inventive Step
§5.01 INTRODUCTION
§5.02 THE INVENTIVE STEP AT GRANT
§5.03 THE INVENTIVE STEP IN COURT
§5.04 THE INVENTIVE STEP AND PATENT POLICY
[A] Technological Neutrality and Its Consequences
[B] The 'Right' Level
§5.05 THE ROLE OF THE UPC IN RELATION TO THE INVENTIVE STEP
CHAPTER 6 Secret Prior Art: The Many Faces of Article 54(3) EPC
§6.01 INTRODUCTION
§6.02 THE TREATMENT OF PRIOR POST-PUBLISHED PATENT APPLICATIONS
[A] Prior Rights under Article 54(3) EPC
[B] The Territorial Effect of Article 54(3) EPC Prior Rights
[C] The Treatment of Article 54(3) EPC Prior Rights
[1] From a Prior Claims Approach to a Whole Contents Approach
[2] Narrow Concept of Novelty
[3] Poisonous Priority and Toxic Divisionals
§6.03 THE TREATMENT OF NATIONAL PRIOR RIGHTS
[A] National Prior Rights and Classical European Patents
[B] National Prior Rights and European Patents with Unitary Effect
[1] National Prior Rights Preventing Registration of Unitary Effect
[2] Effect of National Prior Rights when Unitary Effect Has Been Registered
[3] Late Validation or Conversion to Nationally Validated Patents?
§6.04 CONCLUSIONS
CHAPTER 7 Patent Specification: Articles 83 and 84 Appeal before the Boards of Appeal of EPO Concerning Computer Programs
§7.01 INTRODUCTION: THE PATENT SPECIFICATION FUNDAMENTALS
§7.02 THE NORMATIVE BACKGROUND AND ITS CONTEXT
§7.03 SOFTWARE SPECIFICATION: CLAIMS AND DESCRIPTION
§7.04 CLAIM CLARITY AND FULL DISCLOSURE OF INVENTION IN THE EPO BOARDS OF APPEAL PRACTICE CONCERNING SOFTWARE
§7.05 CONCLUSION
PART IV Enforcement and Procedural European Patent Law
CHAPTER 8 Enforcement: Legal Implications of the European and Unitary Patent Systems for Non-practicing Entity Patent Enforcement in Europe
§8.01 INTRODUCTION
§8.02 NON-PRACTICING ENTITY PATENT ENFORCEMENT
[A] The Modus Operandi of NPE Business Models
[B] Asymmetrical Advantages
§8.03 LEGAL IMPLICATIONS OF THE EUROPEAN PATENT SYSTEM FOR NON-PRACTICING ENTITY PATENT ENFORCEMENT
[A] Positive Legal Implications of the European Patent System for Non-practicing Entity Patent Enforcement
[B] Negative Legal Implications of the European Patent System for Non-practicing Entity Patent Enforcement
§8.04 POTENTIAL LEGAL IMPLICATIONS OF THE UNITARY PATENT SYSTEM FOR NON-PRACTICING ENTITY PATENT ENFORCEMENT
[A] Potential Positive Legal Implications of the Unitary Patent System for Non-practicing Entity Patent Enforcement
[B] Potential Negative Implications of the Unitary Patent System for Non-practicing Entity Patent Enforcement
§8.05 CONCLUDING REMARKS
CHAPTER 9 The Doctrine of Equivalents and the Interpretation of the Extent of Protection Conferred by a Patent
§9.01 INTRODUCTION
§9.02 THE EUROPEAN PATENT CONVENTION AND THE PROTOCOL FOR THE INTERPRETATION OF ARTICLE 69
§9.03 EQUIVALENCE-BASED INTERPRETATION AS PART OF THE INTERPRETATION TRADITION OF PATENT LAW
[A] On the Interpretation Traditions
[B] On Interpreting Rights in Patent Law and Other Intellectual Property Law
[C] Problems Related to Patent Interpretation and the Doctrine of Equivalents
[D] The Test Questions
§9.04 THE DOCTRINE OF EQUIVALENTS IN RECENT FINNISH LEGAL PRACTICE
§9.05 PRACTICAL ISSUES RELATED TO THE DOCTRINE OF EQUIVALENTS
§9.06 IN CONCLUSION
CHAPTER 10 The Requirements for Preliminary Injunctions in the Unified Patent Court
§10.01 INTRODUCTION
§10.02 PROVISIONAL MEASURES IN THE UPC
§10.03 THE PRELIMINARY INJUNCTION PROCEEDINGS IN THE UPC
[A] Protective Letter
§10.04 THE STANDARD FOR PRELIMINARY INJUNCTIONS
[A] The Legal Provisions
[B] Different Models: Two Extremes
§10.05 THE UPC STANDARD FOR PRELIMINARY INJUNCTIONS
[A] Normative Decision Theory
[B] The Seesaw Model
§10.06 CONCLUSION
CHAPTER 11 Adding Fuel to Fire: A Complex Case of Unifying Patent Limitations and Exceptions through the EU Patent Package
§11.01 INTRODUCTION
§11.02 PATHS OF SUBSTANTIVE HARMONIZATION OF PATENT RIGHTS IN EUROPE
[A] Harmonization or Unification?
[B] European Harmonization and Influence of International Treaty
§11.03 LIMITATIONS AND EXCEPTIONS IN PATENT LAWS IN EUROPE
[A] Limitations and Exceptions: Some Conceptual Distinctions
[B] Patent Limitation in Europe before and after UPCA
[1] Limitation through Excluded Subject Matters in Europe
[2] Limitations on Biotechnology Patents: Purpose Bound Limitation and Exhaustion
[3] Potential Fragmentation in Judicial Competence on Patent Limitations
[C] Exceptions in Unitary Patent Package
[1] Exceptions in the UPCA
[2] Unitary in Principle Only?
§11.04 CONCLUSION
PART V European Patent Law: Perspectives from Other Fields of Law
CHAPTER 12 The Relationship between Copyright and Patent Protection in European Union Law
§12.01 INTRODUCTION
§12.02 THEORIES ON EXCLUSION OF TECHNICAL FUNCTION
§12.03 EXCLUSION OF TECHNICAL FUNCTION UNDER PROTECTION OF INDUSTRIAL PROPERTY
[A] Trademark Protection
[B] Design Protection
§12.04 EXCLUSION OF TECHNICAL FUNCTION UNDER COPYRIGHT LAW
[A] Harmonization of the Object of Protection and Originality
[B] Harmonization of Technical Exclusion
[C] Works of Applied Art
[D] Computer Programs
§12.05 EXCLUSION OF TECHNICAL FUNCTION FROM A SYSTEMIC PERSPECTIVE
§12.06 CONCLUSIONS
CHAPTER 13 Competition Policies for Software Innovations in and beyond Markets: An Investigation into the Complementarity of Competition Law and Patents in the European Union
§13.01 INTRODUCTION
[A] Research Question: Competition Policy for Software Innovations in and beyond Markets
[B] Research Background: Competition Theory and Practice
[C] Research Focus: Software Innovations in Dynamic Markets
[D] Research Methodology: Interdisciplinarity
§13.02 COMPETITION LAW AND THE PROTECTION OF SOFTWARE INNOVATIONS
[A] An Investigation into the Interrelationship between Competition Law and Patents
[B] The Protection of Software Innovations in Product and Technology Markets
[1] Restrictive Agreements and Software Innovations
[2] Monopoly, Dominance and Software Innovation
[3] Merger Analysis and Software Innovations
[C] The Protection of Software Innovations in Competition for Innovation
§13.03 FINDINGS AND CONCLUSIONS
CHAPTER 14 Misuse of Patent Application Procedures: A Case for Condemning Non-misleading Strategies?
§14.01 INTRODUCTION
§14.02 EXPLOITATION OF PATENT APPLICATION PROCEDURES IN AN ECONOMICALLY QUESTIONABLE MANNER
[A] Justifications and Imperfections of the Patent System
[B] Exploiting the Limitations of the Patent System to Raise Rivals' Costs
[C] Reduced Pro-competitive Potential of Strategies for Raising Rivals' Costs
[D] Overall Questionable Patenting Strategies: Limited Patent Law Remedies
§14.03 ANTITRUST OVERSIGHT OF PATENT APPLICATION PROCEDURES: APPLICABILITY AND IMPLICATIONS OF EXISTING CASE LAW
[A] Applicability of Antitrust to Patenting as Unilateral Conduct: Requirements of Dominance and Abuse of Dominance
[B] Standards for Abuse: Implications for Non-misleading Patenting Practices of Related CJEU Case Law
[1] Abuse of IP Application Procedures: Misleading Statements as Potential Abuse
[2] Abuse of Administrative Procedures: Uncertain Applicability to IP Application Procedures
[3] Exploitation of Patents of Questionable Validity: Implications of Conduct in Application Phase
[4] Abusive Exercise of IPRs Absent Doubts about Validity: Competition Law Limitations on IPRs in Situations of Insufficient Justification for Exercising Rights
[C] Standards for Abusive Non-misleading Patenting Practices?
§14.04 NON-MISLEADING PATENTING PRACTICES IN LIGHT OF THEIR ANTI- AND PRO-COMPETITIVE ASPECTS: CIRCUMSTANCES MEETING GENERAL STANDARDS FOR ABUSE
[A] Anti-competitive Harm: Nature and Proof
[B] Absence of Sufficient Redeeming Aspects Maintaining Conduct Non-abusive
[C] Limited Circumstances for Finding Non-misleading Patenting Practices Abusive
§14.05 DIFFICULTY OF DETERMINING ADMINISTRABLE STANDARDS CAPABLE OF TARGETING HARMFUL PATENTING PRACTICES
[A] Difficulty of Devising Standards Capable of Being Complied with and Acting as a Deterrent Specifically to Problematic Patenting
[B] Futility of Targeting Patenting Instead of Later Exercise of Patents?
§14.06 CONCLUDING REMARKS
Bibliography
Table of Legislation
Table of Cases
Index
Back Cover

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