IP GAZET

01     Unitary Patent and Unitary Patent Court are expected at the end of 2022

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Austria has approved the Protocol on Provisional Application to the UPC Convention. This marks the final phase of the introduction of the Unitary Patent and the establishment of the European Patent Court (“Unified Patent Court” or “UPC”). Just an overview of what this all means for you.

 

European patent? Unitary Patent? What is the difference?

 

Today we only know the so-calledEuropean patent' inside thepatent law(part of theintellectual property right). In reality, this is a central European application procedure that finally breaks down into a bundle of national patents. In other words, there is no unified effect: if you want patent protection in all European countries, you will still have to validate your patent in the selected countries, which will have an impact on the cost price. A second consequence is that after registration, patent disputes are dealt with by the national court in question, on the basis of national patent law.  

 

Unitary Patent and Unitary Patent Court

 

This problem led to theidea of a patent at European level that really has unitary effect. This means: not just a central application procedure, but actually one patent that provides coverage for the entire EU, that is governed by a single set of rules and that is assessed by its own court. An important advantage of this system is that enforcement will be much more efficient and will be more centralized under a more specialized court. In addition, applying for a Unitary patent will be considerably cheaper compared to a European patent that will be validated in all EU member states.

 

The idea of itUnitary patent and Unitary patent lawwas therefore created and was actually introduced ten years ago. However, the system had to overcome all kinds of political obstacles (including fierce opposition in Germany and Brexit) before it could finally reach its final phase.

 

Due to the ratification of the Protocol by Austria, sufficient countries have given their 'go', as a result of which a number of institutional provisions of the Unitary Patent Convention have automatically entered into force. During this provisional entry into force of the system, all further preparatory work can begin. Examples include the elaboration of the procedural rules, including rules for infringement and nullity claims and the designation of the judges who will sit in the UPC.

 

Once the full system is operational, Germany willUnitary Patent Treatyratify it so that the system will be fully operational shortly afterwards. From then on it will also be possible to apply for a Unitary Patent. This is expected to be late 2022 or early 2023. We will of course keep you informed!

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02     Watch out for disclosure of invention or product during development

 

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Have you invented an innovative product or technical process? Or have you made a prototype with a specific shape? You may not be able to wait to take this to the outside world. Still, it's best to hold back. After all, the announcement of your innovation can provide protection via thepatent- ordesign lawstand in the way of.

 

You can protect an invention through a patent. An invention is, simply put, a technical solution to a technical problem. One of the conditions for obtaining a patent is that your invention must be new. This means that your invention may not yet be publicly available. In other words, it should not form part of the prior art, which is anything that has been made publicly available before the date of filing of the patent application, whether in writing, orally or otherwise.

 

Design law, which is intended to protect the appearance of a product, has a similar criterion.

 

So you guessed it: if you have already shared details of your new invention or product form with the outside world, such as online, in (scientific) magazines, during a trade fair or conference, then you undermine the novelty of your invention or product and you lose in principle the possibility to apply for protection via a patent or design right.

 

Of course, during the innovation process you will have no choice but to share the details of your invention or product with certain people. This may include employees or freelancers, but also investors or professional advisers. As long as you have not yet filed a patent or design, it is a good idea to conclude a non-disclosure agreement with these partners before sharing information about your invention or product. That way you are legally covered and the novelty will not be compromised.

 

Apart from your own behavior, you must also ensure that during the innovation process within your company, no matters can leak out due to circumstances in which you yourself have not made a mistake. So take the necessary technical measures (such as sufficiently strong IT security and burglary protection) and organizational measures (such as a confidentiality clause in the employment contract with your employees) to limit risks in that sense.

 

Is there still a leak to the outside world? Then it is not necessarily too late:

• Patent law provides that disclosure of an invention does not undermine its novelty if there is clear misuse. This may, for example, concern a former employee who discloses the invention and thereby violates his confidentiality obligation. In that case, the inventor will be given six months from the announcement to still submit the patent application. 

• In design law, there is a grace period of twelve months (this does not necessarily involve abuse). So if you accidentally announced your design prematurely, you still have twelve months from the date of first notification to still file a design.

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03     Recover up to 75% of intellectual property registration fees in 2022 

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In our newsletter of 5 July 2021, you can read how you, as an SME, could submit an application in 2021 to obtain a subsidy, whereby you could receive a refund of up to 50% of the registration fees for a trademark or design application. For 2022, this program will be relaunched, albeit with slightly different content.

 

The subsidy scheme, better known as the “SME Fund”, is an initiative of the European Commission, implemented by the EUIPO (European Intellectual Property Office), to stimulate innovation in the EU. Due to great success in 2021, the subsidy scheme will be repeated in 2022 for the period between January 10, 2022 and December 16, 2022.

 

What exactly qualifies for reimbursement is similar to last year's scheme, although the coverage has become somewhat broader:

 

1. You can recover a maximum of 75% of the registration fees for a trademark or design application within the EU (national trademark or design, EU trademark or Community design), or 50% of these fees for an application outside the EU.

 

1. What is new is that you can also get a refund of 50% of the costs for a national patent registration, with a maximum of 750 euros.

 

The application procedure is similar to last year. You can submit your grant application via the EUIPO website. For more information, see euipo.europa.eu/ohimportal/nl/online-services/sme-fund.

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04     Sense and nonsense of ©, ® and ™ in intellectual property law

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Itcopyrightcharacter (©), the 'registered' character ® and the 'trademark' character TMwell known symbols that you often find in all kinds of places. But what value do these symbols have? Can you also use those characters? In fact, should you even use them at all? And above all: should you be afraid if you see such a sign on someone else's product? We'll clear this up for you.

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These symbols originate from the Anglo-Saxon legal systems, such as the United States and the United Kingdom. In these countries, clear legal consequences are attached to those symbols:

 

• The © symbol stands for "copyright" (known here as copyright) and is used to designate original works. In countries such as the US, affixing this mark creates a presumption that the infringer was aware of the copyright protection, and cannot plead ignorance.

• The ® symbol stands for 'registered trademark'. In certain countries such as the US, a registered trademark is listed together with the ® mark. This also creates the presumption that an infringer knew that there was a protected trademark. If a trademark owner from the US does not use this sign, he will also miss out on certain advantages offered by trademark law (such as claiming damages for a trademark infringement). 

• Finally, in countries such as the US, the TM symbol is applied to marks for which an unregistered mark is claimed. This is a concept that we are not familiar with in the Benelux, for example.

 

In European law, and therefore also in Belgian law, you will not find any requirement that dictates the use of these symbols. 

 

Are these symbols then completely meaningless? No definitely not. These signs (with the exception of the TM sign) are indeed useful as a deterrent to the outside world. Applying the © symbol to your original work (such as a website, software, book, course, paper, etc.), or the ® symbol to your registered mark, shows that you take your intellectual property rights seriously. You remind third parties that you are not afraid to take action against parties who would violate your copyright or trademark rights. 

 

Trademark holders also use the ® symbol to prevent dilution of their trademark. After all, a trademark that is popularly used as a generic name can be declared invalid. That is why you often read that trademark holders impose specific requirements on the use of their trademarks in public communication. Therefore, do not speak of a 'Velcro strap', but of a 'Velcro strap from VELCRO®'. 

 

Please note that you use these symbols correctly. Do not use the ® sign to promote an unregistered name or logo. Besides the fact that this is completely useless, you also violate the rules on misleading market practices.

 

Conclusion: While the © symbol and the ® symbol have no direct legal effect in our legal system, their use may be indirectly useful as a deterrent or to optimally market your brand._cc781905-5cde-3194-bb3b- 136bad5cf58d_

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