J.A. McStea, Teemacs GmbH

11 December 2022

And so, it begins…

…well, eventually. All of the nefarious schemes that were supposed to derail the Unitary Patent and the Unified Patent Court don’t seem to have arrived, and, so the theory went, the Brave New World of European patenting would kick off on 1 April 2023 (no fooling). This assumed that the German Government would deposit its instrument of ratification on 1 January 2023, which will start the “sunrise” period, and this was dependent on the system being ready to go (functioning case management system, that sort of thing).

However, the case management system is, as I write, not up to the job. One writer believed that we’re in danger of, as the old saying goes, spoiling the ship for a ha’p’orth of tar. Having waited for so long, there’s an understandable impatience to Get On With It, but best not to. As a result, the new proposed date for the rising of the sun is 1 March 2023, making the court opening 1 June 2023. So, will June bust out all over? We shall see…

The names of the 85 judges have now been published, and, from what I’ve read, they are generally experienced in patent matters – apparently a high proportion of the judges were patent attorneys – so perhaps the loss of the British judges (particularly good in patent matters) may not be such a blow. A recent webinar said that, because of the judges’ experience, it is expected that the courts will be patent friendly, and that various courts might even enter into competition to attract business.

The EPO is gearing up for the Unitary Patent – there have been a number of EPO communications relating to it, such as this one, relating to the possibility of requesting a delay in the issuing of the R71(3) communication (allowance) so that a unitary patent can be requested as part of a validation. Really can’t see many people doing that. These EPO measures will come into effect from 1 January 2023, regardless of the delay in the UPC’s opening.

Certainly, Givaudan won’t – from its point of view, the system is not of a lot of interest, seeing that we typically only validate EPs in about six countries, and two of those are the UK and Switzerland, so a unitary patent for us would mean a whole lot of money for a lack of flexibility (no dropping your Dutch patent and keeping your UK one) and the danger of central revocation. Eventually, the UPC will have authority over all EP patents, whether the present bundle-type or the unitary patent, which will be chosen at validation time (there will be only one month to make that decision, as opposed to the three months for everyone except Ireland (6 months)).  The non-UPC members are naturally not affected by the UPC system, they will stay with the national courts.

I suspect that a lot of people will be doing a lot of opting out, simply because nobody will want to expose their most valuable EPs to an untried system, especially if they can lose the lot in one court action. Opting out will be possible for 7 years after the UPC opens its doors for business, with the possibility of this period being extended for a further 7 years. Of course, if you never litigate, you can simply do nothing and leave your EP patents where they are.

Given that Givaudan doesn’t do a lot of litigation, doing nothing will probably be our major option, with opting out reserved for very important cases (in order to avoid that possibility of central revocation – some very large Givaudan clients would just love to get their hands on some of the most valuable molecules).

One of the far-reaching effects of Covid has been the use of videoconferencing (VICO) for oral proceedings. The EPO’s report on VICO has been very positive, and, as a result, in a recent decision by el Presidente:

Oral proceedings before examining divisions, opposition divisions, the Legal Division and the Receiving Section (hereinafter referred to as “the division”) are to be held by videoconference.

Only exceptionally will they be held at the EPO, so all those meeting rooms at the Pschorrhöfe are going to be largely empty, with only the relevant division members being present.

Another Covid effect has been on the EQE. As previously mentioned, the UK’s Chartered Institute on-line exams have been a considerable success, and they have gone over completely to an on-line format. The EQE had a few teething troubles with its initial attempt at an on-line format, but these now seem to have been resolved. In addition, as previously mentioned, the EQE is looking at a new modular approach to the exams, to make them a more reasonable test as to whether a candidate is fit to be let loose on the public. Details of the proposed new system may be found here. Any new format won’t be used until 2025 at the earliest.

One of the EPC rules most loved by EPO professional representatives is 127(2), which, in its present form, reads:

Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day following its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the electronic document has reached its destination or to establish the date on which it reached its destination, as the case may be.

This is the “ten-day rule”, which has saved all our bacons so many times. It is also beloved of EQE examiners. Often, you’d get a question involving the preservation of a European application, which, on the face of seems like Mission Impossible. However, you apply the ten-day rule and you land on Good Friday, which kicks the date on to the Tuesday after Easter. This, you find, is a national holiday observed in a region where one of the of the EPO’s offices is located (only Berlin observes International Women’s Day, only Munich observes Corpus Christi, and only The Hague observes Liberation Day), meaning that the due date becomes the Wednesday after Easter, as it must be a day when all EPO offices are open for business. However, the revised R127(2), which will come into effect on 1 November 2023, reads:

Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach its destination. In the event of any dispute concerning the delivery of the electronic document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which it reached its destination. If the European Patent Office establishes that the electronic document has reached its destination more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

This has been foreshadowed for some time, and now it’s coming. So, we’ll all need to be more careful and EQE examiners will need to dream up new scenarios relating to the EPO establishing the receipt of the electronic document.

With the attack on Ukraine by, as he apparently sees himself, Peter the Great, Mk. II, Switzerland is pondering what it means to be neutral in the age of Vlad. Russia has been using Iranian drones in attacks on Ukrainian infrastructure (much, much cheaper than missiles), and an effective counter is the Gepard antiaircraft tank from Kraus-Maffei Wegman, mothballed by the Bundeswehr, but made available to Ukraine. Problem is, the guns, and therefore the necessary ammunition, are from Oerlikon in Switzerland, and there are questions as to whether supply of the ammunition would violate Switzerland’s neutrality. Certainly, Switzerland’s largest political party, the SVP (Swiss People’s Party, a party for those of a traditional cast of mind (i.e. Switzerland is heaven on earth, surrounded by greedy, grasping, jealous neighbours)) thinks so, and so far, Switzerland has refused to export ammunition to Germany for the guns. Switzerland has pretty much mirrored the EU’s sanctions against Russia. This is already too much for the SVP, which says it is abetting “the death of Russian boy soldiers” (something for which, presumably, Vlad the Grate bears no responsibility). Other Swiss political parties disagree, as, in their opinion, “Ukrainians are fighting for us”. There is much soul-searching in other neutral countries (Ireland, Austria), and we know that Vlad has persuaded other neutral countries – Sweden and Finland with their well-equipped militaries – to come to other conclusions. And all Vlad’s huffing and puffing has had zero effect on the house. May this continue.

Switzerland isn’t as affected by the cut-off of Russian gas, as has Germany, but we have been reminded of the possibility of energy shortages and possible blackouts in some places. Certainly, good ol’ Givaudan has implemented energy-saving measures at ZIC and in the production plants. Of course, a lot of it depends on how severe winter will be. So far, it hasn’t been at all severe, indeed relatively mild. We still have blooms on some of the garden trees. Here’s hoping.

We had energy savings foisted upon us when our (oil-fired) heating system at home stopped working. Curiously, we had plenty of hot water. We could hear the burner roaring happily away, but nothing went to the radiators. As a result, the repairers had difficulty believing that we had a problem. (“Do you have oil?” “No, the water is burning and heating all by itself, good, eh?”). In the end (logically), it was a problem with the pump that pushed the water around the system, so now we are again comfortable, and we can dispense with small electric heaters.

Most houses in Swizzieland use oil or gas heating, and the country would like to get rid of them and replace them with heating that doesn’t involve burning things. So would we, but we have radiators, as, as I understand it, heat pumps are fine if you have floor heating (where the needed 30°C temperature is easily attainable) but not if you have radiators, which need 60°C – unless you’re prepared to have gigantic radiators. However, we are assured that the technology, while not quite there yet, is getting there. Wish it would hurry up – I can think of uses for the room currently occupied by our 6000L oil tank.

For those of us who live and/or work in the Waldenburg Valley, to borrow from La Marseillaise, le jour de gloire est arrivé. In typical Swiss fashion, there was much eating and drinking. Even the local watch company got in on the act. After 18 months of mess, we again have trains – as of this very day, the new WB metre-gauge trains started running. Air-conditioned, more comfortable, more frequent, low floors for wheelchairs and ladies with prams. All we need now is for the related road infrastructure also to be complete. Especially the bike path. Currently, we have temporary bypass path made of about 320 metal plates (my poor butt feels every single joint twice a day). Also, rather slippery when wet (it snowed on Friday, and, like a chicken, I took the bus. In any case:

Aux trains, citoyen(ne)s!                                                                                                                                                                                                    Oublions les anciens!                                                                                                                                                                                                      Voyageons, voyageons,                                                                                                                                                                                                            Qu’un train noveau                                                                                                                                                                                                              Apporte beaucoup de joie!

And with that, I wish you all a merry Christmas, and a prosperous, healthy and somewhat saner 2023.




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