NECESSITY OF UNIFIED EU PATENT SYSTEM: U.S. PERSPECTIVE

Jeffrey M. SamuelsProfessor of LawThe University of Akron

U.S. VIEW

Generally supportive because:

1. Lower costs in obtaining patents – by as much as 80%

2. Simplified validation procedure

3. Fewer translation and renewal requirements

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U.S. VIEW

• “Like our European counterparts, US applicants are interested in high quality, efficient, and timely patent process at the lowest cost possible. They are also interested in reliable, uniform, and easily accessible enforcement procedures.”-Letter from Michael K. Kirk, executive director, AIPLA, to Erik Nooteboom, EU IP Unit, dated March 28, 2006

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U.S. VIEW

• Not on front-burner. Everyone preoccupied by implementation of America Invents Act– Study ordered on int’l patent protection for small

business• No U.S. IP Association has adopted formal

resolution in support– “Our [IPO] Committees have been following

developments on the unitary European patent system, which would be generally good for patent owners in the U.S. but the European system has been a moving target.” April 5, 2012 email from IPO Executive Director Herbert C. Wamsley

• PTO Director David J. Kappos has voiced support

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UNIFIED PATENT COURT

• Exclusive Jurisdiction in Respect of Validity and Infringement

– May result in greater uniformity and predictability

– Reduce forum shopping

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U.S. EXPERIENCE

• Creation of U.S. Court of Appeals for the Federal Circuit in 1982

– Led to more predictable interpretation of U.S. patent law

– Made patents more valuable– Danger of “bar capture” – Supreme Court of U.S.

serves as check; Court of Justice of European Union may do the same

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RECENT SUPREME COURT PATENT CASES

• Patentable Subject Matter– Mayo v. Prometheus, 2012 U.S. Lexis 2316– Bilski v. Kappos, 561 U.S. ____ (2010)

• Nonobviousness– KSR v. Teleflex Inc., 550 U.S. 398 (2007)

• Injunctions– eBay v. Merc Exchange, 547 U.S. 388 (2006)

• Infringement– Festo v. Shoketso Kinzoko Kogyo Kabushika, 535 U.S.

722 (2002)

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TRIAL COURT EXPERTISE

• For most part, U.S. relies on judges with no specialized patent experience or juries

• Pilot patent program-Trial judges can elect to hear patent cases

• To extent, EU papent court will rely on judges with technical expertise, such would be viewed favorably by many in U.S.

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