Agreement on European Patent Litigation.
Lyon 12-6-2002 2
• State of affairs now.
• Future.
•History.
Agreement on European Patent Litigation.
Lyon 12-6-2002 3
• June 1999: Intergovernmental Conference Paris.
History:
Mandate:
“to present a draft optional protocol to the European Patent Convention (EPC)
which would commit its signatory states to an integrated judicial system,
including uniform rules of procedure and a common court of appeal.”
Agreement on European Patent Litigation.
Lyon 12-6-2002 4
Working Party
Subgroup Working Party
Intergovernmental Conference London Oct. 2000
Textproposal in treaty language
Working Party
Intergovernmental Conference Place ?? Date ??
Intergovernmental Conference Paris June 1999
Working Party
Text in treaty language
Structure paper
Renewed mandate
mandate
When ?
Agreement on European Patent Litigation.
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The European Patent Organisation.
States interested in
the Litigation Agreement
Who ?
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A d m in is trativ e Com m ittee
C o urto f
F irs t Ins ta nc e
C o urt o fA ppe a l
R e g is try
C e n t r a lR e g i s t r y
S u br e g i s t r y
S u br e g i s t r y
S u br e g i s t r y
C e n tra lD iv is io n .
R e g io n a lD iv is io n
R e g io n a lD iv is io n
R e g io n a lD iv is io n
R e g io n a lD iv is io n
E u rop ean P aten t Cou rt
E u rop ean P aten t J u d iciary.
E xe c utive C o m m itte e / P re s id ium
What ?
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Jurisdiction of the EPJ:
• exclusive jurisdiction as regards validity for the EPLP states
• exclusive jurisdiction as regards infringement or possibe infringement for infringer domiciled in EPLP states
• (non exclusive) jurisdiction for infringement in EPLP states by infringer domiciled elsewhere
• exlusive jurisdiction for infringement of European patent (and connected national patent) if all parties expressly have agreed
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Important is that the European Patent Court will be designated
as the national court with jurisdiction for cases concerning
the (possible) infringement and validity of European patents.
So that the Court can ask preliminary questions to the
Court of Justice of the EEC for the territory of the EU member states
And the supremacy of EU - law, laid down in the pre-amble
of the EPLP, will be safeguarded.
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Organisation of the EPC1:
C e n tra lD iv is io n
R e g io na lD ivis io n
R e g io na lD ivis io n
R e g io na lD ivis io n
Allocation of cases according to
rules of EU Regulation /
Treaties of Brussels and Lugano.
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Characteristics of procedure:
• Strictly structured and limited written phase.
• Strict case management by the court.
• Compulsory legal representation.
• Case ready for decision after one oral hearing.
• Loser pays costs of winning party.
• Possibility of provisional injunctions, restrictive orders and saisie.
• Sanction on court orders in form of astreinte.
• Only limited admissibility of new evidence and arguments in appeal.
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Language regime:
Language in second instance = language in first instance
Language in first instance:
Central division: language of the patent (application)
Regional divisions:
One of the official languages of the EPO,
according to principles of London protocol
on translations.
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Near future:
•Meeting of subgroup WPL July 2002
•Presentation of text to working party. (Summer 2002)
•Presentation of text to Intergovernmental conference. (???)
The agreement provides for a transitory period of 7 years,
during which the European and the national system will coexist.
During this period the plaintiff can choose.
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Threatening development:
Judicial babylonia ...
How many supreme courts does one need?
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European patent/Community patent
both granted by the EPO, following only
one application….
Community Intellectual
Property Court
EPLP Court Enlarged Board
of Appeal EPO
?
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Three possible ways of harmonising:
1. Separate courts but manned by same judges.
2. EU court made acceptable for non EU-states.
3. EU accedes not only to EPC but also to protocol.
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Advantages of third option:
• no need waiting for ratification of Nice-treaty
• no conflicts over competence of member states
• no shared backlog of CFI
• uniform judicial proceedings, also in case of amendments rules of procedure.
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What are we waiting for ?
1978
200220012000199919981997199619951994
199319921991199019891988198719861985198419831982198119801979
The community patent...
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Perhaps we should stop just waiting ...
And look for an interim solution
E.g. along the lines of the articles 142 - 149 EPC.
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Artcles 142 - 149 EPC:
Give member states the option to have patents as
unitary patents
And only a common designation
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Of course these articles were meant for the CPC ….
that came to nothing because of the translation problem
and the problem of the adjudication of the judicial system.
Do these problems still exist after twenty years ???
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The problem - solution approach:
Problem Solution ?
• costs of translation
• judicial system
• no substantive law for
unitary patents that are not
community patents
• London protocol on art. 65 EPC
• protocol on litigation in advanced
stage of preparation
• litigation protocol harmonizes to
large extent the substantive law
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Conclusion:
The problems are solved for those states that:
• Sign the London protocol on article 65 EPC
• Sign the Agreement on Litigation
• Conclude an agreement as meant in articles 142 - 149 EPC.
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So, what are we waiting for ?
Let ’s build our European patent building!
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Protocol
on
Litiga-tion
Protocol
on
trans- lations
Protocol
on
art. 142-149 EPC
E P C
C u r i a