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How to overcome the challenges facing the European IPR system?
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How to overcome the challenges facing the European IPR system?

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The fragmentation, high costs and uncertainty in the European Patent System could explain some of the difficulties that Europe has in moving towards a more knowledge-intensive economy in order to …

The fragmentation, high costs and uncertainty in the European Patent System could explain some of the difficulties that Europe has in moving towards a more knowledge-intensive economy in order to create jobs and economic growth

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  • off-balance-sheet financing is an accounting technique in which a debt for which a company is obligated does not appear on the company's balance sheet as a liability. Keeping debt off the balance sheet allows a company to appear more creditworthy but misrepresents the firm's financial structure to creditors, shareholders, and the public. Financial bailouts of lending institutions by governments, central banks or other institutions can encourage risky lending in the future if those that take the risks come to believe that they will not have to carry the full burden of potential losses. a moral hazard is a situation where there is a tendency to take undue risks because the costs are not borne by the party taking the risk

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  • 1. How to overcome the challenges facing theEuropean IPR system? Victor Rodriguez, Ph.D. ESOF2012 Dublin
  • 2. Outline • Relevance of costs for John Smith • Patent enforcement for John Smith • Costs • Uncertainty • European patents with unitary effect • Unified Patent Court • John Smith options • ConclusionsHow to overcome the challenges facing the European IPR system?
  • 3. Relevance of costs for John SmithSCELLATO ET AL. (2011) How to overcome the challenges facing the European IPR system?
  • 4. Patent enforcement for John SmithSCELLATO ET AL. (2011) How to overcome the challenges facing the European IPR system?
  • 5. Costs • the initial costs of a patent application to the EPO covering 12 MS and CH may be 20 times higher than in the US • the costs of maintaining a patent protection in the 27 MS may be 60 times higher than in the USEUROPEAN COMMISSION (2008) How to overcome the challenges facing the European IPR system?
  • 6. Costs (continued) • A case with €1 million in dispute for both validity and infringement may have a cumulative maximum cost both in first and second instances in multiple parallel litigations across DE, FR, NL, UK 9 times higher than in the USVAN POTTELSBERGHE (2009) How to overcome the challenges facing the European IPR system?
  • 7. Uncertainty • Contradictory national court decisions • Contradictory national court and European decisions • Contradictory administrative decisions • Specialised patent courts • BifurcationRODRIGUEZ (2012) How to overcome the challenges facing the European IPR system?
  • 8. Abridged History1973 Member States signed the Convention on the Community Patent1989 The ratification of an amended CPC in 1989 failed again2000 The European Commission proposed that the Community Patent Regulation deals with Community patent, common judicial system, and translation2002 The European Parliament called on the Commission to alter its proposal2003 A common political approach emerged to tackle centralised jurisdiction and the language problem2004 The Council acknowledged the agreement on the directive on strengthening the enforcement of IP rights2007 The Commission released the Communication “Enhancing the patent system in Europe”2009 The Swedish Presidency of the EU achieved a political agreement on a unified patent litigation system and a unitary legal instrument for granting patents2011 Under the Hungarian presidency of the EU, the European Commission proposed a “suggested solution” for a unitary patent court in the EU, which addressed objections raised by the CJEU2011 Under the Polish presidency of the EU, there was an agreement on the package comprising two regulations establishing the unitary patent and the language regime2012 Under the Danish presidency of the EU, there was an agreement on the location and competence of the judiciary plus a suggestion to delete Arts. 6 to 8 of enhanced cooperation regulationHow to overcome the challenges facing the European IPR system?
  • 9. European Patents with Unitary Effect • Registered as such • Identical scope of protection • Unitary character • Uniform protection • Equal effect • Limited, licensed, transferred, revoked or lapsed in all participating MSEUROPEAN COMMISSION (2011) How to overcome the challenges facing the European IPR system?
  • 10. Unified Patent Court • Paris headquarters; London disputes over pharmaceuticals and life sciences; Munich disputes over mechanical engineering • Choice of bringing an infringement action to the central division if the defendant is based outside the EU or if a revocation action is already pending before the central divisionEUROPEAN COUNCIL (2012) How to overcome the challenges facing the European IPR system?
  • 11. Unified Patent Court (continued)• The unified patent court should not fail by being another source of contradictory decision• The unified patent court should not fail by being a high-cost court• There is still concern over the costs for for accessing the court and costs related to representation• There is still concern over language RODRIGUEZ (2012) How to overcome the challenges facing the European IPR system?
  • 12. Case Study: John Smith options• National patents vs. Unitary patent • A single EU patent would reduce patent costs caused by fragmentation, translation, maintenance• National courts vs. Central court • A centralised patent litigation system would reduce costs caused by parallel litigation and ease the uncertainty generated by contradictory outcomes How to overcome the challenges facing the European IPR system?
  • 13. Conclusions • The fragmentation, high costs and uncertainty in the European Patent System could explain some of the difficulties that Europe has in moving towards a more knowledge-intensive economy in order to create jobs and economic growthHow to overcome the challenges facing the European IPR system?
  • 14. Sources• EUROPEAN COMMISSION (2008) A more research- intensive and integrated European Research Area• EUROPEAN COMMISSION (2011) COM(2011) 215/3• EUROPEAN COUNCIL (2012) Conclusions 29 June 2012• RODRIGUEZ (2011) Constructing a Unitary Title Regime for the European Patent System• RODRIGUEZ (2012) From National to Supranational Enforcement in the European Patent System• SCELLATO ET AL. (2011) Study on the quality of the patent system in Europe• VAN POTTELSBERGHE (2009) Lost propertyHow to overcome the challenges facing the European IPR system?