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Blog

Austrian Supreme Court on the allocation of the burden of proof in the case of trade mark exhaustion in a selective distribution system

By Constantin Kletzer | January 16th, 2024 |

1. A submission of evidence by the trade mark proprietor that the trade mark goods were first put on the market outside the EEA does not shift the burden of proof due to renunciation.

2. The dispatch of trade mark goods by the trade mark proprietor in accordance with Incoterms […]

UPC-series: The veil of secrecy over filed documents

By Constantin Kletzer | January 9th, 2024 |

It is usually said that the public character of a Court’s proceedings enforces the sense of justice and serves the principle of transparency. While the EPO publicizes all its files and everyone can have access to these documents with minor restrictions, on the other hand the UPC restricts the […]

UPC-series: Unified Patent Court: It’s been 6 months!

By Rainer Schultes, Constantin Kletzer, Alexander Schnider | January 4th, 2024 |

June 1st of 2023 the UPC opened its doors for the first time, after long-lasting negotiations among the EU-members and numerous dead-ends. As to the day of writing, more than 16.000 Unitary Patents have already been registered according to the EPO statistics center. Conflicts arising from any Unitary Patent […]

UPC-series: Making the UPCA more attractive

By Alexander Schnider, Constantin Kletzer, Rainer Schultes | December 12th, 2023 |

After plenty of difficulties and years of disagreement, the UPC opened its doors on 1st of June 2023, and it has more than 100 active cases already. Even though it seems like a successful start, many EU members are not members of the UPCA or the ratification of the […]

UPC-series: Division Shopping

By Constantin Kletzer | December 2nd, 2023 |

Recently, an infringement action was brought before the Local Division of the Hague and the language regime of the UPC was put into test. At first, the Applicant chose the Dutch language as the official language of the proceedings. Nevertheless, the Applicant requested a change of the language of […]

UPC-series: Licensing issues

By Constantin Kletzer | November 22nd, 2023 |

License is an agreement through which a licensee leases the rights of IP from its proprietor (licensor) in order to use a product or a service. The UPC has jurisdiction over all European Patents with unitary effect and corresponding licenses, as well as over all classic European Patents and […]

UPC-series: The opt-out scheme explained

By Constantin Kletzer | November 15th, 2023 |

According to Article 83(3) of the Agreement on a Unified Patent Court (UPCA), the exclusive jurisdiction of the UPC regarding “classic” European patents, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, are subject to exceptions in the […]

UPC-series: Rules of procedure

By Constantin Kletzer | November 7th, 2023 |

Both infringement and revocation proceedings on the merits before the UPC consist of a written, an interim and an oral procedure, a procedure for the award of damages and a procedure for cost decisions.

The written procedure

The written procedure before UPC starts with an exchange of written pleadings and […]

UPC-series: Unitary Patent (UP) vs. “Classic” (bundle) European Patent

By Constantin Kletzer | November 2nd, 2023 |

The Unitary Patent (UP) is based on the European patent granted by the EPO under the rules of the European Patent Convention (EPC). In fact, after a “classic” European patent is granted, the unitary effect can be requested afterwards, thereby the European patent acquires unitary effect that provides uniform patent […]

First PI proceedings before the UPC at the Vienna Local Division

By Constantin Kletzer, Alexander Schnider, Rainer Schultes | September 13th, 2023 |

The first oral proceedings on a preliminary injunction before the Vienna Local Division of the Unified Patent Court (UPC) took place today in front of a full house. The language of the proceedings was German.

The Dutch, German and Austrian judges dealt comprehensively and efficiently with all issues, from urgency […]