Art 6-8 of the unitary patent regulation_01156689x

Report
Art. 6 – 8 of the draft Unitary Patent
Regulation
Prof. Dr. Winfried Tilmann
Art. 6 -8 included
•
•
•
•
•
•
•
Grant of the patent:
Revocation of the patent.
Block grant, block revocation
Block transfer
Scope of protection
Protection claims
Injunction claim
EPC
Art. 138 EPC
Art. 142 EPC
Art. 148 EPC
Art. 69 EPC + Prot.
Art. 64 EPC
Art. 118 TFEU and
Art. 6 – 8 Reg.
At least one protection claim by Union Law!
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2
Art. 3 (2) draft-Regulation
(2) A European patent with unitary effect shall have
a unitary character (Art. 142 EPC). It shall provide
uniform protection and shall have equal effect in all
participating Member States (Art. 118 TFEU).
Without prejudice to Article 5, a European patent
with unitary effect may only be limited, licensed,
transferred, revoked or lapse in respect of all the
participating Member States (Art. 148 EPC).
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3
Art. 6 – 8 excluded
•
•
•
•
•
•
•
Grant of the patent:
EPC
Revocation of the patent.
Art. 138 EPC
Block grant, block revocation
Art. 142 EPC
Block transfer
Art. 148 EPC
Scope of protection
Art. 69 EPC + Prot.
Protection claims
Art. 64 EPC + UPC
Injunction claim
UPC
No Union Law "uniform protection"!
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4
Art. 118 TFEU
Article 118
(1) In the context of the establishment and
functioning of the internal market, the European
Parliament and the Council, acting in accordance
with the ordinary legislative procedure, shall
establish measures for the creation of European
intellectual property rights to provide uniform
protection of intellectual property rights throughout
the Union and for the setting up of centralised Unionwide authorisation, coordination and supervision
arrangements.
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5
Art. 118 TFEU
may only be used as basis for the
Regulation, if the "patent with unitary effect"
• is a Union law IP right (like the CTM),
because it
• provides for Union law "uniform
protection"
The EP gets a Union IP right quality by
Union law "uniform protection"
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6
Art. 6- 8 deleted
•
•
•
•
•
•
•
Grant of the patent:
EPC
Revocation of the patent.
Art. 138 EPC
Block grant, block revocation
Art. 142 EPC
Block transfer
Art. 148 EPC
Scope of protection
Art. 69 EPC + Prot.
Protection claims
Art. 64 EPC + UPC
Injunction claim
UPC
In that case: No Union IP, no "Union law
uniform protection"!
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7
Art. 6- 8 included
•
•
•
•
•
•
•
Grant of the patent:
Revocation of the patent.
Block grant, block revocation
Block transfer
Scope of protection
Protection claims
Injunction claim
EPC
Art. 138 EPC
Art. 142 EPC
Art. 148 EPC
Art. 69 EPC + Prot.
Art. 64 EPC
Art. 118 TFEU and
Art. 6 – 8 Reg.
Union law "uniform protection" transforms the EP into
an European IP-right
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8
Thank you
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9
Art. 148 (2) EPC
The group of Contracting States may
provide that a European patent application
for which these Contracting States are
designated may only be transferred,
mortgaged or subjected to any legal means
of execution in respect of all the Contracting
States of the group and in accordance with
the provisions of the special agreement.
= Block transfer etc.
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10
Art. 64 (1) EPC
A European patent shall, subject to the
provisions of paragraph 2, confer on its
proprietor from the date on which the
mention of its grant is published in the
European Patent Bulletin, in each
Contracting State in respect of which it is
granted, the same rights as would be
conferred by a national patent granted in
that State.
= Basis for harmonisation in Regulation and
in Court Agreement
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11
Art. 142 (1) EPC
(1)
Any group of Contracting States, which has
provided by a special agreement that a
European patent granted for those States has
a unitary character throughout their territories,
may provide that a European patent may only
be granted jointly in respect of all those
States.
= Block grant and block revocation
.
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12
Art. 3 (2) draft Patent-Regulation
(2) A European patent with unitary effect shall
have a unitary character (Art. 142 EPC). It shall
provide uniform protection and shall have equal
effect in all participating Member States (Art. 118
TFEU).
Without prejudice to Article 5, a European patent
with unitary effect may only be limited, licensed,
transferred, revoked or lapse in respect of all the
participating Member States (Art. 148 EPC).
www.hoganlovells.com
13
Article 118 TFEU
Article 118
(1) In the context of the establishment and functioning
of the internal market, the European Parliament and
the Council, acting in accordance with the ordinary
legislative procedure, shall establish measures for the
creation of European intellectual property rights to
provide uniform protection of intellectual property
rights throughout the Union and for the setting up of
centralised Union-wide authorisation, coordination
and supervision arrangements.
www.hoganlovells.com
14
Art. 148 (2) EPC
The group of Contracting States may
provide that a European patent application
for which these Contracting States are
designated may only be transferred,
mortgaged or subjected to any legal means
of execution in respect of all the Contracting
States of the group and in accordance with
the provisions of the special agreement.
= Block transfer etc.
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15
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