EPLAW Patent Blog

EU - Preparatory Committee of the Unified Patent Court established

Paul van Beukering and Alexander Ramsay are chair and vice-chair of the newly established Preparatory Committee which will be responsible for the setting up and coming into operation of the Unified Patent Court. They report in a letter to (amongst others) IP Judges and EPLAW dated 27 March, 2013:

"One of the first tasks of the Preparatory Committee will be to fix a roadmap for the early establishment and coming into operation of the Unified Patent Court. There was agreement amongst the participants that the tasks to be carried out are those contained in annex II to the attached document and that these should serve as a basis for the roadmap. It was also agreed that early 2015 would constitute a realistic target date for the entry into operation of the Unified Patent Court.

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"The Preparatory Committee considers it to be of vital interest that stakeholders will be actively
involved in the work of the Committee. Input from industry, patent judges and practitioners will be
needed throughout the process, both at the expert level of the project teams and at a more general level. This will be realised through formal as well as informal consultations and dialogue sessions. An important instrument for communication will be the Committee’s website which will be developed shortly.

"Priority shall be given to a broad consultation on the Rules of Procedure amongst interested circles.
The Committee will do so in close cooperation with the expert group that has worked intensively on
a draft set of rules. Details about the consultation will be communicated in due time. Let us assure
you, input from stakeholders is of utmost importance to the Committee especially on this essential
element of the Committee’s work and a sufficient amount of time will be given."

EU - Agreement on a Unified Patent Court signed

EU - Agreement on a Unified Patent Court signed

The Agreement on a Unified Patent Court was signed on February 19, 2013 at a signing ceremony in Brussels by 24 EU member states. Bulgaria is said to sign in the coming days once internal procedures have been completed. Poland and Spain did not sign the agreement.

The signature of the Agreement triggers the ratification process by national parliaments. The Agreement requires 13 ratifications for entering into force, including the ratification by France, Germany and the United Kingdom.

For the documents making up the “patent package”, see the post dated 23/01/2013 here.

Read the press release of the Council Press: 61 Nr: 6590/13 here.

Reported by Dr. Rudolf Teschemacher

EU - Seminar series on the UPC

"Bird & Bird is running a series of seminars in 2013, across Europe, on the UPC. There will be various speakers at each seminar discussing how they see patent filing strategies and litigation before the UPC working in practice. This will include the latest news on the implementation of the system and the issues that are not covered by the Regulations and the Agreement, as well as a strategic view on the new choices for patent protection and for litigation. Although this is a unified system, there will be differences in approach at the various locations, which means you have to choose your options carefully."

Speakers include Paul van Beukering, Manager of Intellectual Propety Unit, Ministry of Economic Affairs, The Netherlands and Samuel Granata, Judge in the commercial court of Antwerp (Belgium).

Seminar dates and locations are as follows:

Thursday 7 March: The Hague
Thursday 21 March: Munich
Thursday 18 April: London
Friday 31 May: Paris

The program of the first meeting is posted below:

EU - Parliament approves EU unitary patent rules

Parliament approves EU unitary patent rules, Plenary Session Competition − 11-12-2012 - 13:00

"EU inventors will soon be able to get a unitary patent at last. After over 30 years of talks, a new regime will cut the cost of an EU patent by up to 80%, making it more competitive vis-à-vis the US and Japan. MEPs cut costs for small firms and tailored the regime to their needs, in a compromise deal with the Council endorsed by Parliament on Tuesday.

"In three separate voting sessions, MEPs approved the so-called "EU patent package" (unitary patent, language regime and unified patent court)."

Read the entire press release here.

EU - Exclusivity, Transitional Arrangements and Opt-out / Risk of financial disaster for small companies in patent litigation

Exclusivity, Transitional Arrangements and Opt-out; Risk of financial disaster for small companies in patent litigation, paper presented at the ERA/Queen Mary Conference in Paris by Jochen Pagenberg, Bardehle Pagenberg

I Introduction

The crucial point for success or failure of the whole court system is the quality, efficiency and cost of the proceedings before the new court. The shift of jurisdiction from the national courts to the Unified Patent Court (UPC) after a transitional period of only seven years with exclusive jurisdiction also for EP patents has therefore been a point of dispute from the beginning. Nobody seems to have requested this exclusivity, but nobody in Brussels was willing to change it either.

Keeping the national courts as a back up for litigating EP patents would solve a great number of open questions and problems in particular for small and medium enterprises (SMEs) which fear that they have been forgotten in the political discussion.

II Promises of alleged improvements

1. Industry as well as practitioners had always been promised that the introduction of the unitary patent and the corresponding UPC would ensure expeditious and high quality decisions which were to be measured against the best existing national patent courts. In this context users had emphasized that abolishing jurisdiction of the experienced national courts for EP patents before the UPC will have been tested and proven its quality would constitute a serious error. To force patentees of EP patents who only need protection in a few countries into the same judicial system as owners of unitary patents who need protection for the entire EU disregards the different needs of users.

Read the entire paper here.

EU - Draft agreement on a Unified Patent Court and draft Statute - Consolidated text

"Delegations will find in the Annex a revised version of the consolidated text of the above mentioned draft agreement, which takes into account delegations’ comments. Changes in relation to the previous version (14750/12) are underlined."

Read the draft agreement (in English) here.

EU - Draft agreement on a Unified Patent Court

Draft agreement on a Unified Patent Court and draft Statute - Consolidated text

"Delegations will find in the Annex the consolidated text of the above mentioned draft agreement, which will examined at the meeting of the Friends of the Presidency group on 5 October 2012. In addition to editorial improvements suggested by the Council's lawyer-linguists, this text strives to incorporate the elements agreed upon at the 5 December 2011 Competitiveness Council, as well as at the 29/30 June 2012 European Council.

The main changes introduced to the text are explained hereafter :

1. The definition of “European patent” in Art. 2 point (5) has been adapted to make it clear that the Court shall have the same jurisdiction with regard to European patents as national courts currently have. In this context, Art. 15b has been moved up as Art. -15 in order to clarify that the jurisdiction of the Court does not lag behind the jurisdiction of national courts in the area of patents as far as the exclusive competence of the Court in that area is concerned.

2. Article 5(3) has been amended in order to clarify that it will be possible to set up an additional local division for every one hundred patent cases.

3. Article 6(3) was amended in order to clarify what happens in situations where the exact number of 50 cases occurred.

4. In Article 6(4), the term "permanent" in the expression "permanent legally qualified judge" was deleted in order to align the wording with the preceding paragraphs. In the same paragraph, the reference to “regional list” was deleted, given that no such list is provided for in Art. 15.

5. The institutional provisions relating to the Administrative Committee, the Budget Committee and the Advisory Committee have been moved into Chapter I. For the Budget Committee, a new paragraph (3a) has been added to allow for the Budget Committee to adopt its rules of procedure.

6. In order to avoid possible misunderstandings, Union law was moved up in the list of sources of law for the UPC in Art 14e.

7. The terminology of Articles 14f to 14h has been aligned with that of Articles 6-8 of the draft UPP Regulation, the acquis and international Treaties.

8. In Article 21, the reference to the Statute was erroneous given that the latter does not contain any provisions on the costs relating to the functioning of the Centre. The current version proposes therefore that such costs be covered by the budget of the Court, in line with the costs for the training framework for judges (see Art. 20).

9. The previous Article 27 was split into two Articles (i.e. 26a and 27) in order to distinguish more clearly the question of legal capacity from the question of who may have legal standing before the Court.

10. In Article 28, an effort was made to clarify the status and the role of patent attorneys in the proceedings before the Court. Account has been taken of the fact that the concept of "patent attorney" might not be known in all Contracting States.

11. The provisions of Chapter IV (Powers of the Court) have been aligned more closely to the corresponding provisions of the Enforcement Directive.

12. The Final provisions have been streamlined. Article 58f (Languages of the Agreement) has been aligned on the corresponding provision of the EPC. Finally, Article 59 provides now for a single entry into force of the Agreement, which shall depend inter alia upon the prior entry into force of any amendments of Regulation (EC) 44/2001 are deemed necessary to accommodate the setting up of the UPC.

13. Finally, in Article 6 of the Statute (Immunity of judges) the wording has been aligned to that concerning judges of the Court of Justice of the European Union.

Read the entire draft agreement (in English) here.