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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, January 07, 2004CEC publishes Proposal concerning a Community Patent Court.The EU Commission recently has published a Proposal for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent as well as a Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance .
According to the proposal, the Court of Justice shall have jurisdiction in disputes relating to the infringement and the validity of the Community patent. Which actions relating to those disputes are allowed will be governed by the Community patent regulation. The draft Community patent regulation foresees in this respect an action to stop infringement as well as an action for the declaration of non-infringement. The Court may also order the confiscation of infringing items or other appropriate penalties. Concerning the validity of a Community patent, the draft regulation provides for an invalidity action (Article 31) and a counter claim for invalidity. As agreed by the Council in its 3 March 2003 common political approach, the Community jurisdiction shall be established at the latest by the year 2010. Until that time national courts of Member States will have jurisdiction. The Community jurisdiction will only be established after a transitional period in which national court shall have jurisdiction. It is proposed that the Community Patent Court will consist of seven judges including the president. With the normal composition of the bench being three judges, six judges would allow to form two chambers within the Community Patent Court. The seventh member would appear necessary for the reinforcement of a chamber where needed, e.g. due to illness of a judge or for the chamber presided over by the president of the Community Patent Court who also has to assume tasks related to the administration and the representation of the Community Patent Court. In special circumstances provided for in the Rules of Procedure, the Community Patent Court could sit in an enlarged composition, for example in cases where fundamental questions of patent law are concerned or in a reduced composition which could be the case for interim measures or simple cases in main proceedings. The judges should be assisted in their work throughout the handling of the case by technical experts as agreed upon by the Council in its 3 March 2003 common political approach. For that purpose, use of "assistant rapporteurs" as foreseen in Article 13 of the Protocol on Statute of the Court of Justice shall be made. Such assistant rapporteurs, specialised in different technical fields, should actively participate in the preparation, the hearing and the deliberation of a case. However, they would not have a right to vote on the decision to take. Their input would be important in helping the judges to focus from the start of proceedings on the essential technical questions involved. Their role would not be to make the use of experts entirely superfluous but to enable the court as a whole to understand the technical aspects of the case quickly and accurately which is relevant for an efficient handling of a case and for a legally sound decision. The Community Patent Court, though attached to the Court of First Instance should have its own registrar. With a view to an entirely different type of litigation and the case load of the Community Patent Court, a separate registrar would appear to be necessary to ensure swift and efficient proceedings before the Community Patent Court. According to the proposal, in patent litigation questions of technology play an important part in order to reach a legally sound decision. Technical expertise is required not only on the side of the Community Patent Court contributed by assistant rapporteurs but also on the side of the parties. The first and second paragraphs recognise this important role of technical expertise for the parties giving European Patent Attorneys the right of audience before the Community Patent Court. A reference to the list maintained by the European Patent Office for the purpose of legal representation before it will ensure appropriate and uniform standards for qualifying persons which must be met for efficient proceedings. Where a European Patent Attorney appears before the Community Patent Court, he will enjoy the necessary rights and immunities and the Community Patent Court will have the powers normally accorded to courts of law under the conditions laid down in the Rules of Procedure.
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