昨年の９月に開催された第１４回欧州特許判事シンポの内容が掲載されています。
special edition 1/2009 of the EPO Official Journalキーノートスピーチやワークショップのスピーチをそのまま記録したスタイルのジャーナルです。
EPC2000で導入されたLimitation（訂正審判？）や Revocation（無効審判？）、EPOにおける当業者の考え方など結構興味深い内容が掲載されています。
ところでジャーナルの内容とは関係ないのですが、EPOのジャーナルは通常ドイツ語、英語、フランス語の３つの公用語で併記されています。全く同じ内容が平気されていると思うのですが文章の長さが違うんですね。
長さ（文字の量か？）を比較すると、
ドイツ語 ＞ フランス語 ＞ 英語
という感じです。ドイツ語よりフランス語が長くなることはありますが英語はいつでも短いですね。単語の長さが理由なのでしょうか？
Vizepräsident des Bezirksgerichts Den Haag ドイツ語
Vice President, The Hague District Court 英語
Vice-Président du tribunal de première instance de La Haye フランス語
おまけ
ジャーナルに紹介されていた判例をいくつか紹介
Effect of the London Agreementon patent litigationThe ratification of the London Agreement
was authorised by the sole article of Law
No. 2007-1477 of 17 October 2007. It is
now possible, therefore, to enjoy the
protection of a European patent even if
the description is in a language other
than French. However, Article L.614-7
IPC, enacted by the law of 29 October
2007, provides that the description
must be translated into French for the
purposes of litigation before the national
courts.
Scope of claims: relevance ofstatements made during the grantprocedure for determining thescopeParis Court of Appeal (Fourth Chamber,
Division B), judgment of 22 February
2008 in Thermohauser v Matfer (PIBD,
No. 872, III, p. 244 and PI JC July/
August 2008, p. 35, with comments by
Privat Vigand)
In an otherwise typical case concerning
revocation and infringement of a French
patent, the Court of Appeal sought to
remove doubt as to the scope of a claim
introduced during the grant proceedings
by reviewing the evidence taken for the
purposes of examining the application
and, in particular, statements made by
the patentee during the examination
phase to clarify the scope of the claim.
Although, when EPC 2000 was drawn
up, it was decided not to lay down any
European rule requiring systematic
consideration of the examination dossier
for the purpose of determining the scope
of claims (Article 3 of the Protocol on the
Interpretation of Article 69 EPC not
adopted), the Court took the view that
dossiers may be consulted exceptionally
where features have been added to the
claims during the examination phase.
This was all the more important in the
context of French law, under which the
applicant may not amend the description
or, in particular, the introduction in order
to outline the new technical problem said
to be solved by the invention in the new
claim.
Enforceability of amendments to aEuropean patentParis Court of Appeal (Fourth Chamber,
Division B), judgment of 19 October
2007 in Maasland v Lely industries and
C. Van der Lely NV
In this case, amendments were made
between the filing of the application and
the grant of the European patent, but
after infringement proceedings had been
instituted.
It was undisputed that the means which
were the subject of the amended
claim were essentially included in the
description.
The Court of Appeal held that, although
claims must be interpreted in the light of
the description, they must nevertheless,
under Article 84 EPC, include the
essential features of the claimed
invention.
Since that was not the case in the
circumstances in question, the Court
ruled that, although the European patent
had taken effect retroactively from the
date of the application, it was not
enforceable against third parties from
the date on which the application was
published but rather from the date on
which the patent was granted.
)
投稿
As you all know, EVERY EPO Decision, positive to Applicant, or negative, carries three signatures, whether it be 3 Examiners or 3 Appeal Board Judges. Yet, only one of the panel of three knows the file in full detail. The system breeds collegiality and an esprit de corps at first instance. The totally independent second instance has no hesitation to disagree with the Examiners, and does so, fairly often.
The system is inherently expensive, but necessary for consistency, when the panel members are from any one of 35 Member States. It is neither the English system, where a single judge decides patent validity at the High Court in London, nor the German system where patent validity at first instance is decided by a 5 judge panel at the Federal Patents Court in Munich. All 5 judges read the case. Now that's what I call expensive.
The EPO system nourishes consistency. The caselaw of the EPO is constantly evolving but without any swing of a pendulum. Practitioners can tell you, with a high level of confidence, what will work and what won't.
The more complicated you make the practiuce of law, the more complexity you breed. Why allow dissent judgements below Supreme Court level, except to pander to the vanity of judges? Why have a Doctrine of Equivalents, except to give judges more freedom to waffle? The beauty of the European Patent Convention is that it contains the irreducible minimum of provisions needed in a patent statute. It emerged in 1973 on a plain white sheet of paper carrying no baggage of previous Statutes. You should stay with your present FtI Statute in all its magnificent obfuscation, or do what Europe did, that is, clear away the accumulated legal rubbish, and start afresh.
To my mind, the new Rules for the BPAI are a step in the right direction, but a step that will bring (assuming nothing else changes) only more wailing, gnashing of teeth and tearing of shirts.
おまけ
Posted by: American Cowboy | May 22, 2009 at 09:55 AM
MaxDrei does it again: holds up the EPC and EPO as the highest and best evolution of patents in the history of the world. While I am open minded and like to hear of other approached to solving problems, his constant insistence on the perfection of the European model is really irritating.
Posted by: MaxDrei | May 22, 2009 at 10:05 AM
You know what, Cowboy, there are two particular reasons why I do it:
1. I'm proud of EPC/EPO, a little bit of European co-operation and shared culture (even if I'm not very proud of a lot of other stuff in Europe) and
2. It "really" irritates my socks off, when Americans keep going on about how America is so superior (in every way) to everybody else on this planet.
You can realate to both of those, eh Cowboy?
And, thanks, Smash, for the reason you give. Actually, I had thought another was more important. In common law Binding Precedent, the identity of each individual judge is a key brick in the legal edifice. Not so in (more socialist??) civil law jurisdictions where consensus is more important.