European Commission outlines new patent court to rescue single patent talks
This article was originally published in SRA
The European Commission has produced a new proposal for an EU patents court that it hopes will address the legal objections raised by the Court of Justice of the EU and finally allow the creation of the single EU patent.
On 30 May, the court proposal was examined by industry and internal market ministers who seemed generally happy with the idea and agreed to resume talks on the assumption that it will allay the CJEU's concerns1,2. They also agreed to press on with talks on the single patent itself, with the aim of achieving consensus by their next meeting on 27 June.
The patent talks have been under way in one form or another for several decades now. The aim is to establish a unitary EU patent that is automatically valid in all the participating member states, underpinned by a European and EU Patents Court (EEUPC).
However, it has been a painfully slow process, and the negotiations have repeatedly encountered legal, technical and political problems. A few months ago, Italy and Spain pulled out of the talks over a dispute about the language arrangements, and the other 25 member states decided to go it alone under a so-called "enhanced co-operation" procedure.
The commission subsequently presented two draft regulations on the patent and the language arrangements3, which the Council of Ministers began discussing on 14 April. Barring a few legal issues, the texts of these two documents are mostly sorted out.
Problems for new court
The EEUPC hit a major problem in March this year, when the CJEU said that the proposal was not compatible with the EU Treaties4. This was mainly because the new court would operate outside the EU legal framework but would still be interpreting and applying EU law, and because it would deprive national courts of their powers and obligations to refer questions to the CJEU on the interpretation of EU patent law.
Amid fears that this could spell the end of the whole project, the commission took the plan back to the drawing board. In drawing up its new proposal, it considered three possible options:
- giving exclusive jurisdiction on patent litigation to the CJEU;
- giving jurisdiction to national courts to deliver judgments for all participating member states (as with the Community trade mark); or
- giving exclusive jurisdiction to an independent court set up by the member states.
According to the commission, the first option is strongly opposed by the member states. It would not allow for the creation of a unified patent jurisdiction because the CJEU could not be entrusted with disputes relating to "classical" European patents (ie, those issued by the European Patent Office but validated at national level).
The second option would probably not be acceptable to most member states or to industry because there would be no common appeal instance and it might not be possible to achieve the necessary high quality of judgments or uniform interpretation of the law across the whole territory of the member states, the commission says.
Therefore, the "only possible solution" is for the member states to conclude an international agreement setting up a unified patent court with jurisdiction only for the participating EU countries.
Future litigation system
Under this proposal, the future litigation system would look something like this:
There would be a unified patent court set up by the member states and excluding participation by third party countries and the EU. The court would have jurisdiction over unitary patents as well as "classical" European patents.
The main features of the proposed EEUPC would be retained – a Court of First Instance with local and central divisions, a Court of Appeal and a registry, and rules on actions and counterclaims for revocations and the languages of proceedings. These ideas have drawn broad support from member states and companies who use the patent system, the commission notes.
"Most appropriate solution"
At the 30 May meeting, internal market commissioner Michel Barnier said that the EEUPC as now configured would cover all the EU member states in the same way as the CJEU did, and would provide a common patent jurisdiction. "It is essential that the council gives a clear signal to all users of the patent system confirming that we are committed to coming up with a unified patent litigation system," he said.
The president of the council of ministers, Hungary's strategic affairs minister Z�ltan Cséfalvay, said the commission proposal was "the most appropriate solution" to meet the requirements of the CJEU and that talks would continue on this basis.
Two regulations
Ministers also agreed to continue negotiations on the two draft regulations on the patent and the language arrangements. This will be done on the basis of the texts already agreed, although a few more issues have arisen that will need to be sorted out, such as the level and distribution of renewal fees paid to the EPO for European patents.
Mr Cséfalvay said that while there were still some "technical issues" to be solved, the member states had generally endorsed the current texts and the council would continue its efforts to reach agreement on a "general approach" – ie, on the essential elements of the legislation – at the 27 June meeting. "We are getting closer and closer to creating a unitary patent," he declared.
References
1. Council of Ministers, Creating a Unified Patent Litigation System, 26 May 2011, http://register.consilium.europa.eu/pdf/en/11/st10/st10630.en11.pdf
2. Council of Ministers meeting, 30 May 2011, http://video.consilium.europa.eu/index.php?sessionno=3423&lang=EN&searchdate=2011-5-30&searchtopic=&searchtitle=&searchcat=22
3. European Commission launches EU patent proposals, Regulatory Affairs Pharma, 15 April 2011
4. EU to press on with single patent despite setback for court plans, Regulatory Affairs Pharma, 10 March 2011