Archive | 2015, April | (3) posts

Gorilla moves

Does your attorney suddenly start acting like a gorilla before, or even during, an oral hearing before the European patent office? Don’t worry, it’s (probably) part of a very deliberate plan to let you walk away as the winner. But let me get back to that in a while. First, I want to tell you a little bit about the mock-trial I just attended in Strasbourg, as preparation to become a European patent litigator before the new Unitary Patent Court (UPC). This mock-trial had been prepared by a written procedure of several submissions from the Claimant and the Defendants over a period of a few months, and was therefore very realistically played-out. There was a panel of judges and the parties had to make their submissions standing at a lectern before the panel.

On the day before we had a lecture on the topic of the “hard impact of soft skills”, which was based to a large extent on the teachings of Amy Cuddy, who has studied the impact of so called “power poses”. Studies have shown that only 2 minutes of power posing can alter the testosterone and cortisol levels in the brain, and make us more self-confident. The day after the mock-trial, we had a feed-back session, on the mock-trial, and on the things that were expressed, consciously or unconsciously, with body language during this oral hearing.

So what is a power pose? Well, basically it is a pose intended to make you look bigger, for instance putting your hands behind your head, or leaning forward over a table with your hands far apart, and as the title of this blog post might tell you, it is much like common moves and poses that a gorilla makes. Also the very common “winning pose”, i.e. putting both your hands into the sky, is a so called power pose.

Therefore, if you find your patent attorney performing power posing for a couple of minutes before the oral hearing, or perhaps seeming a bit too relaxed with his or her hands behind the head during the oral proceeding, don’t worry, your attorney is just showing that he or she is very confident. Or at least he or she is trying to make himself or herself feel that way, which is another positive effect of power posing!

Sofia Willquist, European Patent Attorney

Link to TED seminar by Amy Cuddy.


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Accelerated processing of Standard Essential Patent (SEP) applications?

Numerous industries have benefited from standard-setting organizations (SSOs), whose primary activities encompass developing, coordinating and producing technical standards intended to address the needs of affected adopters. The SSOs may advance technology, as standardization promotes interoperability, quality and user-friendliness.

Technical solutions developed within the scope of a standard may provide significant added value to its users, and standard-essential patents (SEP) may hereby be rewarded to companies which invest in their R&D to provide these solutions. However, a balance needs to be established between a fair return on investment and the possibility of a user to access the standard. This balance forms the fundament of the FRAND (fair, reasonable and non-discriminatory) licensing terms, whereby SEPs may become widely available.

The observation by the President of the Institute of Professional Representatives before the European Patent Office (epi), Mr. Tony Tangena, sent to the European Commission on 6th February 2015, emphasizes the advantages of FRAND terms related to SEPs. In his observation, Mr. Tangena states that SEPs take on a special role in the patent system, as an exclusion of prospective users from a standard could undermine the standardization impact. Hence, the FRAND principles should be defended to mitigate unreasonable, unfair or discriminatory royalties while still adequately rewarding the companies providing the technical solutions protected by their SEPs. In short, a win-win situation for licensor and licensee should, if not always attained, at least be the principles’ goal.

Given the importance of SEPs, it is unsatisfactory that their processing may suffer from patent offices’ backlogs and/or relatively long lead times until grant. To further expedite the processing of patent applications declared to an SSO as standard essential, the President addresses the idea of providing an acceleration program for these patent applications, similar to other programs such as the Patent Prosecution Highway (PPH), the Accelerated Prosecution of European Patent Applications (PACE), etc.

In my opinion, the possibility of letting standard-related patent applications enjoy a shorter and more efficient processing within an acceleration program is highly interesting. This is even further substantiated when considering the processing of patent applications in an area such as telecommunications. In this area, companies often participate extensively in standardization, and shorter patent application processing times are paramount as the average life-time of granted patents within telecommunications is significantly shorter than in other fields such as mechanics or pharmaceuticals. Hence, as standardization strives to serve consumer welfare, and whereby praiseworthy licensing agreements such as FRAND, in their turn, improve the availability of the SEP technologies, I sincerely welcome an acceleration of the processing of standard-related patent applications to increase the patent protection transparency.

Love Koci, European Patent Attorney

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First non-European country begins validating European patents

As earlier announced on the Awapatent IP Blog here, Tunisia and Morocco has signed an agreement with the EPO on the validation of European patents in the respective countries.

Effective 1 March 2015 the agreement with Morocco entered in to force, thus enabling applicants with a European patent application filed on or after this date to validate their granted patent in Morocco – and thereby to obtain patent protection in Morocco in a significantly cheaper way than hitherto.

Thereby Morocco has become the first ever non-European country to begin validation European patents.

Morocco is automatically designated for all European patent applications filed on or after 1 March 2015.

Validation in Morocco costs a flat rate fee of EUR 240. The fee is payable at the same time as the ordinary designation fees, namely 6 months calculated from publication of the European application.

Late payment within 2 months is possible subject to a surcharge of 50 % of the above-mentioned fee.

Upon grant of the European patent, a translation will have to be filed. At the time of writing this the translation requirements are not completely clear. Indications, however, are that only a translation of the granted claims into Arabic or French must be submitted to the Moroccan IPO. An exception may be for European patents granted in German, in which case a translation of the description into Arabic, French or English will also have to be filed.

In any case the time limit for filing the validation will, as in all other cases, be three months from the publication of the decision to grant.

In other words it seems that it will in most cases not be necessary to file a full translation of the application, which is otherwise required for a direct national application in Morocco. Moreover, as a French translation of the claims will already be on file due to the EPO requirements relating to the grant of the European patent, validation in Morocco will in most cases incur no additional translation costs.

As such, for applicants interested in obtaining protection in Morocco this new procedure should prove significantly cheaper and more streamlined than applying for a direct national patent in Morocco.

Troels Peter Rørdam, European Patent Attorney & Certified Danish Patent Agent