WEB-CONTENT MEASUREMENTS – T 1422/19-3.5.07 – May 19, 2021 – non-technical features which contribute to technical character
The software discussed in this decision carries out an indirect measurement. The software measures/ determines a web page viewing area based on the measurement/ input data/ raw data of the size of a browser window. Such indirect measurements are of a technical nature, regardless of what use is made of the results (cf. G 1/19, point 99).
To enable proprietors of a patent in force in Germany to effectively protect their rights under the patent, they can apply for injunctions against alleged patent infringers as a means of interim legal protection. Injunctions can, for example, be aimed at prohibiting an alleged patent infringer from distributing or manufacturing a certain patent-infringing product within the area where a patent (injunction patent) is valid on pain of a fine or imprisonment.
Lukas VogelLukas Vogel supports clients in the fields of medical technology, manufacturing technology and automotive engineering. He is a German and European Patent Attorney, European Trademark and Design Attorney and holds a Master’s degree in engineering (Dipl.-Ing).
Biotechnology can be subdivded into three main areas: The largest area is called “red biotechnology“ and is applied in the healthcare and pharmaceutical sectors. The second area of “white biotechnology“ relates to the use of microorganisms in chemical production systems. The third area of “green biotechnology“ is about agriculture.
Biotechnological innovations have become indispensible for reaching the Sustainable Development Goals (SGDs) of the United Nations and the European Green Deal objectives. Thereby, new medical treatments, clean energy sources and sustainable agriculture are just three examples how biotechnology contributes to theses goals.
Dr. Julia Romic-PicklDr. rer. nat.
Patent Engineer
Division Chemistry/Biotechnology
Contact Details:
JRomic-Pickl@wbetal.de
At the EPO, data relating to software-related inventions may, under certain conditions, be regarded as data of a technical character. This means that such data will be taken into account as a distinguishing feature in the examination of inventive step. Data may have a technical character if they are so-called “functional data”. A typical example of “functional data” is data intended to control a technical device. In the following decision T 1806/20, the appellant tried to present “cognitive data” as “functional data”. The appellant relied on the earlier decision T 1194/97, which identifies a type of test method that can be used to determine whether the data are “functional data”.
The European Patent Office (EPO) has released several Insight Reports since 2019 to inform about the latest important patent trends. Two of the ten Insight Reports released up to now relate to the biotechnology sector, which describe future and emerging technologies that are considered as groundbreaking in the medical sector. The present article focuses on the latest biotechnological Insight Report on mRNA-based vaccines, which is a particularly growing field of mRNA technologies.
Dr. Julia Romic-PicklDr. rer. nat.
Patent Engineer
Division Chemistry/Biotechnology
Contact Details:
JRomic-Pickl@wbetal.de
The amendments concern, inter alia, Rules 126(2), 127(2) and 131(2) EPC, which deal with service by postal services and by electronic means as well as the calculation of time limits triggered by the service of a document. (https://www.epo.org/en/legal/official-journal/2023/03/a29.html)
A Technical Board of Appeal of the EPO has referred questions to the EPO’s Enlarged Board of Appeal regarding the definition of the state of the art in relation to a commercially available product (link).
The referring Board asks whether the commercial availability of a product and partial information about its composition (e.g. datasheets) can be state of the art, even when the composition or internal structure cannot be analysed or reproduced. This is critical for the referring case, as the possibility to use such a product in the inventive step assessment is decisive. The last question considers what threshold is required for the “undue burden” criterion in r.1.4 of G 1/92.
Currently, the new European Unified Patent System is being implemented, which is planned to start on April 1, 2023. The introduction of the Unified Patent System will have an impact on all European patents, including “old” European patents that have already been granted and are in force. Please find below more information on the new Unified Patent System.
After the start of the European Unified Patent System, an applicant of a European patent application can choose between the following options after grant:
The new Unified Patent System provides for a Unified Patent Court. Patent infringement proceedings or nullity proceedings relating to a Unitary Patent can be conducted centrally via this court. The Unified Patent Court is responsible for European Unitary Patents and for classic European Patents and thus also for “old” European Patents which are still in force. However, in the case of a classical European Patent, during a transitional period of between 7 and 14 years after the start of the Unified Patent System, the national courts in the countries where the classic European Patent is validated will have jurisdiction in addition to the Unified Patent Court as before. In other words, for example, patent infringement proceedings in the case of a Unitary Patent will take place centrally before the Unified Patent Court, whereas in the case of a classic European Patent, a choice can be made between the Unified Patent Court and the national courts.
A patentee of a classic European Patent has the possibility – during the transitional period mentioned above – to exclude the jurisdiction of the Unified Patent Court. For this purpose, it is necessary to file a so-called “opt-out-request” for the classic European Patent. After the exclusion of the Unified Patent Court due to an opt-out-request, the national courts will continue to have exclusive jurisdiction for the classic European Patent.
Fig. 2 below shows the different possibilities.
Figure 2: different possibilities regarding a European patent protection
An opt-out-request can already be filed 3 months before the start of the Unified Patent system in the so-called “sunrise period”. It is currently planned that the sunrise period starts on January 1, 2023. The question as whether an opt-out-request should be filed for a classic European Patent depends on the individual case. An opt-out-request is only possible as long as no action is pending before the Unified Patent Court.
Patentees and applicants of classic European Patents should take the following steps with regard to the new Unified Patent System:
If you have any questions about the new Unified Patent System – for example, about the steps mentioned above – we will be pleased to answer them personally.
欧洲专利局和中国国家知识产权局在去年已经达成一项为期两年的试点计划，该计划允许在中国国家知识产权局提交PCT申请的申请人选择欧洲专利局作为其国际检索单位（ISA）。该协议于2019年11月12日在中国苏州召开的两局的联席会议上签署。
由于新冠病毒的爆发，该计划何时启动至2020年10月中旬一直未最终确定。
2020年12月正式启动
近日，EPO终于宣布，该试点计划将于2020年12月1日正式开始。试点计划将对向CNIPA或WIPO国际知识产权局（IB）申请的中华人民共和国国民和居民开放。此外，还限定参与该计划的专利申请前12个月为2500件，后12个月为3000件。
中国申请人的利好
对于中国申请人来说，该计划将为优化其国际专利战略提供一个额外的选择，特别是在考虑欧洲布局时。因此，有意加快申请速度的中国用户，通过选择欧洲专利局作为他们的国际检索单位，可以提前一年进入欧洲阶段，并可直接进入欧洲实质审查阶段，而无需欧洲补充检索。
关于试点计划的更多详细问题，请参见以下链接:
英文：https://www.epo.org/service-support/faq/own-file/cnipa-epo-pilot.html
中文：https://www.cnipa.gov.cn/art/2020/10/20/art_364_153578.html
WINTER BRANDL Partnerschaft mbB, 苗添豪（中国事务负责人、德国专利律师、欧洲专利律师、中国专利代理师 ），Michael Schüller（合伙人、德国专利律师、欧洲专利律师）
Tianhao MiaoTianhao Miao supports our Chinese clients in the field of mechanical engineering. He is Patent Attorney, European Patent Attorney and Chinese Patent Attorney.
Transitional provisions – applicability of Article 13(1) RPBA 2020 to cases where the summons to oral proceedings was notified before the entry into force of the RPBA 2020. (Catchword of the Board)
BoA, Decision of January 20, 2020 – T 1386/18; Article 13(1) RPBA 2020
The appellant (applicant) lodged an appeal within the prescribed period and in the prescribed form against the decision of the examining division to refuse the European patent application No. 10840300.7.
The revised RPBA 2020 is in force from January 1, 2020. Therefore, the written submissions of the appellant mentioned above have been filed before the RPBA 2020 came into force. The oral proceeding was held after the RPBA 2020 came into force.
In its decision, the BoA noted that the RPBA 2020 applies, except for “new” Articles 12(4) to (6) and 13(2) RPBA 2020. Instead of which the “old” Articles 12(4) and 13 RPBA 2007 remain applicable.
This is laid down in the transitional provisions according to Article 25 RPBA 2020. “New” Articles 12(4) to (6) RPBA 2020 refer to the first stage (filing stage) of the appeal, see Fig. 1 below.
“New” Article 12(4) RPBA 2020 defines that a request, fact, objection, argument, and/ or evidence on which the decision under appeal was/were not based is considered as an amendment. Any such amendment may be admitted only at the discretion of the Board. Nevertheless, if the party demonstrates that the request, fact, objection, argument, and evidence was/ were admissibly raised and maintained in the proceedings leading to the decision under appeal, then it is not considered as an amendment. Compared to this, the “old” Article 12(4) RPBA 2007 –here applicable – has less stringent limitations on amendments at the first stage.
“New” Article 13(2) RPBA 2020 refers to the third stage of the appeal, see Fig. 1 above. This Article imposes the most stringent limitations on appeal submissions which are made at an advanced stage of the proceedings. Advanced stage means after the expiry of a period set by the board of appeal in communication under Rule 100(2) EPC or, where no such communication is issued, after notification of a summons to oral proceedings. In contrast, the “old” Article 13 RPBA 2007 – here applicable – has less stringent limitations.
In the present decision, the BoA clarified, that the “new” Article 13(1) RPBA 2020 applies to the present proceedings because this Article is not excluded by the transitional provisions defined in Article 25 RPBA 2020. “New” Article 13(1) RPBA 2020 refers to the second stage of the appeal – see Fig. 1 above – and to amendments before notification of a summons or before the expiry of a time-limit of a communication. “New” Article 13(1) RPBA 2020 defines the conditions under which a party may amend its appeal case after the initial stage of the proceedings and before the period set in a communication under Rule 100(2) EPC has expired or before a summons to oral proceedings has been notified. The party must provide reasons as to why the amendment is submitted at this stage of the appeal proceedings. Its admittance is subject to the Board’s discretion alone.
According to a further recent decision T 0032/16 of a different BoA, when compared, the revised wording in “new” Article 13(1) RPBA 2020 is more detailed in listing out the requirements on the party making an amendment to its appeal case and the criteria to be used by the Board when exercising its discretion. The difference however merely reflects much of the case law developed under “old” Article 13(1) RPBA 2007. Therefore, according to T 0032/16 no contradiction can be found in the wording of “new” Article 13(1) RPBA 2020 compared to “old” Article 13 RPBA 2007.
In a further recent BoA decision, T 0989/15 the Board saw no reason to apply the criteria of “new” Article 13(1) RPBA 2020 in addition.
Decision T 1386/18: https://www.epo.org/law-practice/case-law-appeals/pdf/t181386eu1.pdf
RPBA 2020: https://www.epo.org/law-practice/case-law-appeals/communications/2019/20190704.html