The China National Intellectual Property Administration issued an Interpretation on 27 March 2020 regarding its Announcement No. 350 (28 January 2020) on time limits missed due to Covid-19, stating that foreign individuals and enterprises can also apply for a restoration of their rights if the loss was due to the Covid-19. Daily updated information regarding the status of other Patent and Trademark Offices you may find on our website.
1. Patents (invention patent, utility model patent, design patent) and layout designs of integrated circuits
Patentees and applicants can restore their patent rights if the loss of rights was due to Covid-19 at the place of the applicant, patentee or his patent attorney. This applies to all common time limits during the application procedures (e.g. responding to office action, payment of fees). The restoration of rights does not apply to the following time limits: claiming priority; grace period for patent novelty; limitation period of action for patent infringement or term of patent protection.
For all time limits during the application of trademarks, a similar procedure applies. The difference is that the time limit, during which the applicant or trademark owner is prevented from performing a trademark related action due to Covid-19, is suspended. The applicant or trademark owner shall file an application for continuation of proceedings within 2 months from the removal of the obstacle and provide evidence thereof.
Should you have any questions or considerations how this might impact on your business activities in China, please do not hesitate to contact us.
We are looking forward to hearing from you.
Christoph Jaeckel, Attorney-at-Law at Prüfer & Partner
Andreas Jacob, Attorney-at-Law and managing partner at Prüfer & Partner (E-Mail: firstname.lastname@example.org)
Today, on 20 March 2020, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in Germany published its decision on the complaint against the German agreement to the Unified Patent Court (UPC) and the EU unified patent.
According to this decision, the German law approving the UPC and the EU unified patent is null and void.
From the reasons given for the decision it is clear that the BVerfG did not reject the UPC and the EU unified patent per se (i.e. in terms of content), but "only" the German way to consent to it.
The BVerfG saw the law as a de facto constitutional amendment. Since two-thirds majorities of the German Parliament (Bundestag) are required for constitutional amendments under the Basic Law, but this was not the case in the decisive third reading of the law due to the lack of a sufficient number of members of parliament, the law was not compatible with the Basic Law. It should also be noted that the decision was relatively controversial on the bench of the BVerfG itself: three of the total of eight judges were of the opposing opinion that the law did not mean a constitutional change and would therefore not require a two-thirds majority of the parliament to approve it.
Further details and explanations of the decision can be found here.
What is the future of the Unified Patent Court (UPC) and the EU unitary patent?
In the simplest scenario, the German Parliament will obtain its approval with the two-thirds majority that is then required. In view of the current Corona crisis and the expected bottleneck due to other legislative projects, this will probably only be possible with a significant delay.
On the other hand, the current legal situation in Germany and the UK's departure from the UPC make it increasingly likely that, at the EU level, the entire body of legislation will be called into question or at least reformed, thus postponing the UPC and EU patent indefinitely into the future.
We will keep you informed about important developments on this topic.
Dr. Andreas Oser, LL.M., Prüfer & Partner (E-Mail: email@example.com)
A British government spokesman has announced that the United Kingdom no longer plans to participate in the EU unitary patent and the Unified Patent Court (UPC).
This intention of the new UK government under Boris Johnson is in contrast to the plans that former Prime Minister Theresa May had. The reason for the new position: The agreement on the Unified Patent Court (UPC) would mean that the UK would have to apply EU law and accept the European Court of Justice (ECJ) as a supervisory court. However, this would not be compatible with plans for UK sovereignty.
The consequences of this decision:
In Germany, a constitutional complaint against the system of the Unified Patent Court (UPC) is still pending. A decision is expected within the next few months. However, the rejection of the new government of the United Kingdom may have an impact on the entire system of unitary patent and UPC. Experts are now expecting a significant delay in their introduction. Some even believe that the entire unit patent and UPC system will have to be revised.
We will keep you informed about important developments in this area.
Dr. Andreas Oser, LL.M., Partner at Prüfer & Partner
Dr. Christian Gärtner, Patent Attorney with Prüfer & Partner (E-Mail: firstname.lastname@example.org)