Is Chapter VII (Article 35) of the UPC Agreement introducing or abolishing patent arbitration in Europe – call for comments, by Erik Ficks, Roschier
In times of consultation in relation to the draft Rules of Procedure (ending on 1 October 2013) and when the Agreement on a Unified Patent Court (the Agreement is hereinafter referred to as the UPC, and the Unified Patent Court as the Court) seems an inevitable reality, having recently been ratified by Austria (“just” 12 more contracting states to go, including the UK, Germany and France) and the European Commission having proposed the necessary changes to the (recently recasted) Brussels I Regulation, I would like to bring to attention an entire Chapter (really only one Article) in the UPC which has received very little (or no) attention so far. Chapter VII on “Patent mediation and arbitration” contains one article – Article 35 on “Patent mediation and arbitration centre” – and is the last section of Part I (General and institutional provisions) of the UPC.
Below, I am addressing the ambiguities in this Chapter/Article and whether it is more likely to lead to the abolishing of patent arbitration in Europe than its introduction. (The status of patent mediation will also be (briefly) touched upon.) I will conclude with some questions and invite all readers to submit comments. Before concluding with the questions in relation to which comments are invited, a brief background to the issues – in general and under the UPC – is provided. In addition to Chapter VII (Article 35) of the UPC, patent mediation and arbitration is covered in the 15th draft of the Rules of Procedure. I am not in this article necessarily suggesting any changes to those sections of the draft. Any problems with the proposed system lies in the UPC and the more appropriate place to advocate suitable rules of procedure will instead be in the Mediation and Arbitration Rules to be established (one hopes that there will be a consultation, to my knowledge there is not even a working group for these Rules yet).
Read the entire contribution (in English) here.