Article 50ter – a new IP box for Luxembourg

On Thursday 22 March 2018, the Luxembourgish parliament passed a new law on the tax regime for intellectual property, offering a tax advantage to companies according to their scope of research and development activities.

The law aims to create a new tax regime concerning IP rights created as from 1st January 2008 and outlines the conditions to be fulfilled by a company in order to benefit from a tax exemption for its revenues deriving from its research activities.
It delineates eligible assets such as patents and copyright on software, but trademarks and domain names are not eligible anymore, compared to the previous regime (article 50 bis).
Maximum exempted revenues are also redefined, including an assessment of the direct and indirect costs linked to the taxpayer’s research activities, and the determination of eligible expenses.

The new law (article 50ter) will be in force for the 2018 tax year. However, revenues deriving from IP rights filed before 1st July 2016 still enjoy the benefit of the earlier regime (article 50bis) up to 30st June 2021, including an exemption for trademark and domain name revenues without application of a maximum exemption limit.

Olivier Laidebeur

Luxembourg approves the Unified Patent Court Agreement

On 18 March 2015, the Luxembourg Parliament approved the Agreement on the Unified Patent Court (UPC). Upon signature by the Grand Duke and ratification, Luxembourg will join the 6 EU states that are already formally in the game (Austria, Belgium, Denmark, France, Malta and Sweden).

The creation of the Unified Patent Court is a major evolution for patent enforcement. It will be competent for infringement and nullity actions for both classical European Patents and European Patents with unitary effect. A patentee will thus be able to enforce his rights in all the member States though a single court action.

Luxembourg is in the heart of the new system: the Court of Appeal of the UPC and the Courts’ Registry will be located in Luxembourg. Of course, the Court of Justice of the European Union (CJEU) is also located in Luxembourg, and will have the final say on any points of European law referred by the Unified Patent Court.

Furthermore, Luxembourg is centrally located between the Paris and Munich sections of the Central Division of the UPC, and the Munich and The Hague offices of the European Patent Office.

Philippe OCVIRK

EPO to abolish time limits for filing divisionals

The Administrative council of the EPO decided on Thursday 17 October 2013 to revert to the former practice to allow the filing of divisionals as long as a patent application is pending.

As you know Rule 36 EPC entered into force on April 1, 2010 to basically restrict the filing of divisionals to 24 months from the first communication of the examining division (R.36(1)(a) EPC) or 24 months from a communication of new lack of unity (R.36(1)(b)) EPC. This change did not only put a huge monitoring burden on all parties without increasing legal certainty for third parties, but it also jeopardized the applicant’s rights to adequately protect its invention. For further details on the current situation please refer to our article here.

So, the Administrative Council fortunately decided to revert to former Rule 36(1) EPC which will read as follows:

R.36(1): The applicant may file a divisional application relating to
any pending earlier European patent application.

From April 1, 2014, a divisional may thus be filed for any pending patent application, be it a regular patent application or itself already a divisional. This will thus also apply to cases where there currently is no possibility to file a divisional because time limits of current R.36(1) have already expired, IF the application is still pending on April 1, 2014.

It has also been decided that for second or higher generation divisionals, increased fees would apply. Although the amounts of such fees have yet to be decided on, it seems that these costs will certainly not exceed the hidden monitoring costs of the current complicated regulation.

Office Freylinger will of course keep you current on further developments regarding the upcoming changes.