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A Practitioner's Guide to European Patent Law: For National Practice and the Unified Patent Court 2nd ed

Paul England

ISBN13: 9781509947645

New Edition ISBN: 9781509981144

Previous Edition ISBN: 9781509928606

Published: September 2022

Publisher: Hart Publishing

Country of Publication: UK

Format: Hardback

Price: £190.00

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9781509947652

£171.00

This new edition is a comprehensive and practical guide to European patent law – a 'ius commune'. The book highlights the areas of consistency and difference between the most influential European patent law jurisdictions: the European Patent Office, England and Wales, France, Germany, and the Netherlands. The book also draws insights from further afield, with contributions from other, very active, patent jurisdictions, including Belgium, Italy, Spain, Sweden, Denmark, and Switzerland.

Uniquely, the book addresses European patent law by subject matter area, assessing the key national and EPO approaches together rather than nation by nation. Each chapter outlines the common ground between the national approaches and provides a guide for the possible application of European patent law in national courts and the UPC in the future.

In addition to featuring content on new countries, the second edition includes new chapters dedicated to the substantive aspects of FRAND, declarations, and evidence. There is also an expanded commentary on construction, including common terms used in patent claims. A must-read for anyone working in the field of European patent law.

Subjects:: Intellectual Property Law

Contents:: Explanatory Note and Acknowledgements; Abbreviations; Table of Cases; Table of EU and International Material; Table of National Materials; Introduction; I. Towards a Common Standard of Patent Law; II. The Purpose of this Book; III. Outline of Chapters; 1. The Skilled Person and their Common General Knowledge; I. The Skilled Person or Team; II. Common General Knowledge; III. Towards Common Ground; 2. Construction and Scope of Protection of Patent Claims; I. Statutory Basis; II. Principles of construction; III. General Principles of National Law on the Doctrine of Equivalents; IV. The Role of the “Formstein defence”; V. The Role of the Prosecution File; VI. Particular terms and forms of claim; VII. Forms of claim; VIII. Numerical Ranges; IX. Towards Common Ground; 3. Direct Infringement; I. Statutory Basis; II. Liability; III. Product claims (Article 25(a) CPC 1989); IV. Process claims (Article 26 CPC 1989); V. Products Made by an Infringing Process (Article 24(c) CPC 1989); VI. Processes for obtaining new products; VII. Second Medical Use Claim Infringement; VIII. Problems raised by purpose limited claims; IX. Infringement of DNA Sequences; X. Unjustified threats; XI. Towards Common Ground; 4. Indirect Infringement; I. Statutory Basis; II. Means Relating to an Essential Element of the Invention; III. Means suitable for putting the invention into effect; IV. Staple Commercial Products; V. Knowledge; VI. Staple commercial products; VII. Double Territoriality; VIII. Extra-territoriality; IX. Indirect Infringement of Second Medical Use Claims; X. Other forms of contributory infringement; XI. Towards Common Ground; 5. Defences; I. The Diverse Sources of Defence to Infringement; II. The Experimental Use Exemption; III. The Bolar Exemption; IV. Other defences in the CPC 1989; V. Exhaustion; VI. De minimis; VII. Public interest compulsion and Crown use; VIII. Invalidity and non-infringement of Claims Asserted; IX. Euro-defences; X. Prior Use; XI. Innocent Infringement as a Defence to Damages; XII. Towards Common Ground; 6. Declarations; I. General jurisdictional basis; II. Declarations of non-infringement; III. Declaration that patent is standard essential; IV. Declarations concerning validity; 7. FRAND; I. Standards, SEPs and FRAND; II. European Guidance; III. General Principles of National Law; V. Determining the FRAND royalty rate; 8. Remedies; I. Statutory Basis; II. Preliminary Injunctions; III. Damages for unjustified injunction; IV. Effect of Protective Letter; V. Quia Timet Injunction; VI. Final Injunction; VII. Publication of Judgment; VIII. Affect of tested validity; IX. Approach to costs; X. Towards Common Ground; 9. Patentability and Industrial Application; I. Statutory Basis; II. Industrial Application; III. Excluded Subject-matter; IV. Exceptions to Patentability; V. Methods of Treatment and Diagnostics – Article 53(c) EPC; VI. Towards Common Ground; 10. Novelty; I. Statutory Basis; II. General Principles of EPO and National Case Law; III. Disclosure and enablement; IV. Interpreting Patent Claims and the Prior Art for Novelty Purposes; V. Made Available to the Public; VI. Novelty Over General Disclosures in the Art; VII. Priority; VIII. Product by Process Claims; IX. First, Second and Subsequent Medical Uses; X. Other Forms of Purpose-limited Claims; XI. Claim Amendment; XII. Towards a Common Approach; 11. Inventive step; I. Statutory Basis; II. Date; III. Determination of fact or law?; IV. A technical or commercial question?; V. The role of Common General Knowledge; VI. The Approach of the EPO Boards; VII. The Approaches of the National Courts; VIII. Criticism of Problem-and-Solution; IX. Criticism of Motivation-based Tests; X. An Alternative Basis for Assessing Inventive Step; XI. Mixed Technical and Non-technical Features; XII. Combinations of Prior Art Features; XIII. Other Factors; XIV. Towards Common Ground; 12. Sufficiency; I. Statutory Basis; II. General Approaches of EPO and National Law; III. Principle of general application; IV. Forms of claim; V. Inventive improvements / infringements; VI. Enablement not meeting quality promised; VII. Errors; VIII. Biological Deposits; IX. Plausibility in the Context of Insufficiency; X. Lack of Clarity; XI. Towards Common Ground; 13. Plausibility; I. Is There a Statutory Basis?; II. Origins of Plausibility in the EPO; III. Inventive Step; IV. Insufficiency; V. Industrial Applicability; VI. The Novelty Context; VII. Post-dated Evidence; VIII. The Plausibility Threshold; IX. Further Questions; X. Towards Common Ground; 14. Supplementary Protection Certificates; I. Statutory Basis; II. Plant Protection Regulation; III. Conditions for Grant; IV. Protected by a Basic Patent in Force; V. Marketing Authorisations in the SPC Context; VI. Extent of protection (Article 4 SPC Regulation); VII. Same Rights as Conferred by the Patent (Article 5 SPC Regulation); VIII. Term; IX. Medicinal Products for Paediatric Use; X. The SPC Manufacturing Waiver; XI. Towards Common Ground; 15. Patent Ownership, Dealings and Employee Inventors; I. Introduction; II. Ownership; III. Inventor Compensation; IV. Rights of Co-owners; V. Patent Dealings; VI. Effect of Transfer of Ownership on Licensee; VII. Compulsory Licences and Licences of Right; VIII. Public interest compulsion or Crown use; IX. Patent Ownership, Dealings and Employee Inventors; 16. Cross-border Actions in Europe; I. Relation between national and EPO proceedings; II. The Brussels Regulation; III. Cross-border Validity Actions; IV. Cross-border Infringement Actions; V. Cross-border Declarations of Non-infringement; VI. Common Ground; 17. Evidence; I. General principles; II. Burden of proof; III. General obligations to produce evidence; IV. Specific procedures for obtaining evidence; V. Witness of fact evidence; VI. Expert opinion evidence; VII. Evidence as Applied to Construction; VIII. Experiments; IX. Letters rogatory (letters of request) and US 1782; X. Border seizures; XI. Confidentiality; XII. Privilege; 18. The Impact of Brexit; I. Background; II. The impact of Brexit on 31 January 2020'Future Relationship'; III. and the 'Future Relationship' after 31 December 2020 and Patents; Appendices; Appendix A: Extracts of EPC 2000; Appendix B: Extracts of the Community Patent Convention 1989; Appendix C: The SPC Regulation; Appendix D: The Biotechnology Directive; Appendix E: The Enforcement Directive; Appendix F: The Unitary Patent Regulation; Appendix G: Extracts of the Unified Patent Court Agreement; Appendix H: Consolidated Version of the Paediatric Regulation; Index