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A Practitioner's Guide to European Patent Law


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Structured around the themes of patent law that will be at issue in the UPC, this practitioner's textbook focuses on substantive European patent law and is written by an outstanding team of lawyers with long-standing experience in patent litigation in Europe.

Table of Contents

Introduction 1. The Skilled Person and their Common General Knowledge I. The Skilled Person or Team II. Common General Knowledge III. Towards Common Ground in the UPC 2. Scope of Protection of Patent Claims I. Statutory Basis II. General Principles of National Law on the Doctrine of Equivalents III. The Role of the Prosecution File IV. Numerical Ranges V. Case Comparison - The Pemetrexed Decisions VI. Towards Common Ground in the UPC 3. Direct Infringement I. Statutory Basis II. Issues Relating to Article 25(a) CPC 1989 III. Products Made by an Infringing Process (Article 24(c) CPC 1989) IV. Second Medical Use Claim Infringement V. Infringement of DNA Sequences VI. Towards Common Ground for the UPC 4. Indirect Infringement I. Statutory Basis II. Means Relating to an Essential Element of the Invention III. Staple Commercial Products IV. Knowledge V. Double Territoriality VI. Indirect Infringement of Second Medical Use Claims VII. Common Design VIII. Towards Common Ground in the UPC 5. Defences I. The Diverse Sources of Defence to Infringement II. The Experimental Use Exemption III. The Bolar Exemption IV. Exhaustion V. Invalidity of Claims Asserted VI. FRAND Licence Objection VII. Prior Use VIII. Innocent Infringement as a Defence to Damages IX. Towards Common Ground in the UPC 6. Remedies I. Statutory Basis II. Preliminary Injunctions III. Final Injunction IV. Stays of Injunction and Tailored Orders V. Springboard Relief VI. Award of Damages and Lost Profits VII. Recall, Removing from the Channels of Commerce and Destruction VIII. Publication of Judgment IX. Towards Common Ground in the UPC 7. 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 in the UPC 8. Novelty I. Statutory Basis II. General Principles of EPO and National Case Law III. Interpreting Patent Claims and the Prior Art for Novelty Purposes IV. Made Available to the Public V. Novelty Over General Disclosures in the Art VI. Priority VII. First, Second and Subsequent Medical Uses VIII. Other Forms of Purpose-limited Claims IX. Claim Amendment X. Towards a Common Approach for the UPC 9. Inventive Step I. Statutory Basis II. The Approach of the EPO Boards III. The Approaches of the National Courts IV. Criticism of Problem-and-Solution V. Criticism of Motivation-based Tests VI. An Alternative Basis for Assessing Inventive Step VII. Mixed Technical and Non-technical Features VIII. Combinations of Prior Art Features IX. Secondary Indicia X. Case Comparison XI. Towards Common Ground for the UPC 10. Sufficiency I. Statutory Basis II. General Approaches of EPO and National Law III. Biogen Insufficiency and Lundbeck-type Cases IV. Functionally Defined, 'Reach-through' Claims V. Biological Deposits VI. Plausibility in the Context of Insufficiency VII. Lack of Clarity VIII. Towards Common Ground in the UPC 11. Plausibility I. Is Th ere 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 for the UPC 12. Supplementary Protection Certificates I. Statutory Basis II. Conditions for Grant III. Protected by a Basic Patent in Force IV. Marketing Authorisations in the SPC Context V. Term VI. Medicinal Products for Paediatric Use VII. Reform VIII. Towards Common Ground for the UPC 13. 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. Patent Ownership, Dealings and Employee Inventors in the UPC 14. Cross-border Actions in Europe I. The Brussels Regulation II. Cross-border Validity Actions III. Cross-border Infringement Actions IV. Cross-border Declarations of Non-infringement V. Common Ground for the UPC 15. The Impact of Brexit I. Background II. The Brexit Options III. Brexit and Patents IV. Brexit and Supplementary Protection Certificates

About the Author

Paul England is a solicitor at Taylor Wessing, London.


What is genuinely European in European Patent Law? Is there a common set of rules or understandings related to topics such as indirect infringement, equivalents, exhaustion, damages and joint ownership? To say that answering these questions in one book is challenging would be grossly underestimating the task. Paul England (with the assistance of Sara Burghart [Munich], Judith Krens [Amsterdam] and Francois Pochart [Paris]) took up the challenge and certainly has met, if not exceeded, the high expectations created by the book's title... a useful reference to litigators, patent attorneys and in-house counsels throughout Europe. -- Peter Ling * The IPKat *

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