Agreement on Patent Litigation.

Jan Willems

Still going strong.

Agreement on European Patent Litigation.

Lyon 12-6-2002 2

• State of affairs now.

• Future.

•History.

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• 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.”

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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 ?

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The European Patent Organisation.

Who ?

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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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The Future...

near

and not so near.

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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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Not so near future...

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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

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All is well that ends well!

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Thank you for your attention !

Questions ?