Category Archives: Law and Technology

The Unitary Patent set to simplify the European patent process

At the end of last year, the European Parliament in Strasbourg adopted two draft regulations on the creation of the unitary patent as part of the “patent package” which also includes the creation of a Unified Patent Court (UPC).

The President of the European Patent Office (EPO), Benoît Battistelli welcomed the advantages of the unitary patent.

“Cutting the costs of patenting inventions in Europe will strongly benefit European enterprises, especially research centres and SMEs. The vision of the founding fathers of the EPO to equip the European economy with a truly supranational patent system can now become a reality, strengthening Europe’s competitiveness.”

The unitary patent will have effect in the 25 participating European states and will allow for a more straightforward European patent system. It is based on two regulations and an international agreement, the first regulation creates the instrument and the second deals with the applicable language regime for the new patent. The UPC is the third and last component of the “patent package” and will be set up under an international convention. This will create a unified patent litigation system and will function as a single patent jurisdiction concerning infringement and validity questions related to unitary patents.

The agreement establishing the UPC was signed by 24 states on the 19 February 2013 (followed by Bulgaria on 5 March 2013) and will enter into force once thirteen EU member states have ratified the package, including France, Germany and the UK.

The unitary patent will co-exist with national patents and the classical European patent, with which it shares the legal basis and the procedure for grant (as laid out in the European Patent Convention). The only difference will occur in the post-grant phase, and unitary patents will be treated as a single patent. Therefore they will no longer need to be validated or translated, nor will they need to be administered nationally in each and every state. This will not only simplify the patent process but it will also lead to massive savings in terms of time and costs. The changes should make Europe more attractive for innovation and investors, bringing it on a par with its competitors in Asia and the US.

German Courts Refuse to Bow to US Pressure in MegaUpload Case

A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.

Mural of Kim Dotcom painted by Cart’1 courtesy of Thierry Ehrman – Abode of Chaos.

Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.

As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a  criminal offence.

According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.