European Patent Litigation Agreement Gets Judges' Approval

In an extraordinary show of European judicial unity, senior IP judges from several EU countries have banded together to promote a legislative initiative aimed at providing a single European patents court to hear patent cases.

One of the principle problems from a globalised point of view of conducting patent litigation in Europe is the need to conduct litigation in each European country individually. Whilst Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial disputes, known as the Brussels Regulation, purports to provide for courts in one EU state to rule on patent infringement within another EU state (patent infringement being regarded as a tort), because the Brussels Regulation reserves judgment on validity of national IP rights to national courts in practice such judgments cannot be obtained as soon as validity is put in issue. Hence, the need for a centralised court to rule on both patent infringement and validity issues has long been recognised, and recently steps have been made in that direction.

More particularly, several of the member states of the European Patent Organisation (whose principle organ is the EPO) in 2003 published a draft agreement and statute, collectively known as the European Patent Litigation Agreement (EPLA). The EPLA provides for the establishment of a new, independent, international organisation, known as the European Patent Judiciary (EPJ). The organs of the EPJ would be a European Patent Court (comprising the Court of First Instance, the Court of Appeal and a Registry) and an Administrative Committee, with the Court of First Instance comprising a Central Division set up at the seat of the EPJ and a number of Regional Divisions. Regional Divisions will be set up upon request by a Contracting State or a group of Contracting States. It should be noted that the proposed EPJ is a separate organisation outside the auspices of the EU, although the EPJ Courts can make references to the ECJ on points of law to the extent that the decision takes effect in an EU Member State. The substantive law to be applied is closely related to that contained within the Community Patent Convention, which provisions date from the 1970's and closely mirror both the European Patent Convention applied by the EPO, and harmonised national laws. Procedural rules are also proposed dealing with relief obtainable, representation, the ever-problematic language of proceedings (which provisions mirror those of the EPO), and costs. Further details are available on the EPO website at;

 http://patlaw-reform.european-patent-office.org/epla/.

Although first published in 2003, no further progress on the EPLA has been made, making it appear as if the EPLA could go the same way as the Community Patent Convention, which was never brought into force. However, in a rare lobbying attempt by leading judicial figures, 24 intellectual property judges from 10 countries last month urged EU member states to adopt the EPLA, in a move designed to step up pressure on EU governments to adopt the plan. In a remarkable "Judges` Resolution", acknowledged as "thoroughly unusual", senior judges from, among others, the UK House of Lords, Germany's Federal Court, the Italian Supreme Court, the Court of First Instance in the Hague, the Tribunal de Grande Instance in Paris and the Commercial Court of Zurich, urged the adoption of the EPLA, for the sake of European industry. The resolution will be circulated to representatives of member states, and it is up to the governments of those countries to press ahead and bring the agreement into force.

Nicholas Wallin
Withers & Rogers LLP