What would be really useful...
would be if the court could rule that certain silly non-EU patents are invalid within the EU (e.g. all those US patents which aren't properly examined, are trivial, irrelevant and where clear prior art exists.)
New EU rules have been created which allow the judgments of new unified patent courts (UPCs) to have legal effect from early 2015. A new EU regulation has been published in the trading bloc's official journal and changes existing laws on the jurisdiction of courts and recognition of their rulings. The changes mean that the …
"Seems sensible to me."
Possibly because you haven't read and thought about it. As the single system can be challenged and interpreted in regional courts, then you'll see "challenge tourism", where (eg) French companies challenge a Danish-owned patent through a French court. Any company with dodgy grounds for appeal will use courts in the third world parts of the EU where judges can be suitably bribed or threatened. Patents that don't suit particular governments will find the challenge much tougher in those countries. And the costs of defending your patent against wrongful challenge will (in the words of the European Economic and Social Committee, the whole new system could "undermine the defendant's rights to have access to justice".
Admittedly there's the prospect of appeal if somebody doesn't like the findings of a court challenge, but as far as I know there's no inherent right to appeal, leave usually has to be granted by the court system of the country concerned, so if the local justice system is weak, it may be incredibly costly or even impossible to get a fair outcome.
There's certainly plenty of theoretical sense in a pan-European patent system, but given the unstable, politically motivated beast that the EU is, and the patchwork quilt of cultures, levels of economic and infrastructure development, how well do you expect this to pan out? There was lots of theoretical sense in having a pan-European currency, and that's hardly worked out well, has it?
"changes existing laws on the jurisdiction of courts and recognition of their rulings. "
Well, that will make lots of people very happy. Specifically the types of people who want referenda on EU membership should it try to change or extend it's "competences" - changing existing laws is definitely doing that.
Oh dear, more nutty politicians ahead ...
They have been invalid for as long as they have existed, but plenty of EU patents offices will issue invalid software patents if you call them 'computer implemented inventions'. They are an expensive nuisance to defend against as some judges do not recognise unpatentable subjects even when the patents have the marker phrase 'computer implemented invention' all over them.
The plan was to take patent disputes away from the regional courts and have European patent court staffed with clerks and judges who were all patent professionals who would never find a patent invalid, no matter how obvious, old or mathematical. By the looks of it, the new plan is to keep disputes in regional courts. I am surprised that appeals are not automatic, as they fund holiday homes for patent lawyers.
Whenever I hear the word 'protection' in the same phrase as 'patent' I think of one of Edison's thugs with a baseball bat giving we the chance to pay for some 'protection', or something might 'happen' to my business. The only way it could get more silly would be if trolls got their own tax exemption... too late, already happened.
'Computer-implemented inventions' are not necessarily software. You can't patent a program, but you may be able to patent a washing machine using a new program - that's a new article of manufacture. So it's wrong to say that all 'computer-implemented inventions' are invalid. That's not to say they're all valid either - it's case-by-case. TINLA.
Nor is it right to say that patent professionals will always find patent valid. The UK courts (where the judges are top professionals) find patents valid slightly under half the time. Whether we shall get judges of the same quality in the new European courts remains to be seen.
So what would happen if the same thing (or similar enough for the purpose of patents) is owned by different individuals in different countries?
Peter owns the patent in England, Pierre owns the patent in France. Assuming neither are patent trolls and that both actually produce something relevant, what happens next? Peter gets his patent approved first, is Pierre now left with nothing of value and the threat of impending court action over infringing products?
I am no expert but this appears to be problematic.
All good fun. If it's the same thing AND Pierre has only filed in France and Peter in UK, then they can both have patents - Pierre can sell everywhere except UK and Peter can sell everywhere except France. If they've both filed (pan-)European applications, the patents go to whoever filed first. TINLA.
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