EU Presidency: Towards an Enhanced Patent Litigation System and a Community Patent - How to
Take Discussions Further.
The EU Presidency (now: Portugal) have drawn up some Document 11622/07 addressed to the Working Party on Intellectual Property (Patents) titled Towards an Enhanced Patent Litigation System and a Community Patent - How to Take Discussions Further. From the contents thereof:
"[...] 1. Further to requests by the Competitiveness Council on 4 December 2006 and the European Council on 8-9 March 2007, the Commission on 3 April 2007 presented a Communication entitled 'Enhancing the patent system in Europe' (COM (2007) 165 final, Council doc. 8302/07). The Communication is a follow up to a stakeholder consultation that the Commission carried out in 2006 and aims at building consensus in order to create an improved patent system in Europe that is more accessible for stakeholders, in particular SMEs. Towards this end it sets out available options for a single European patent litigation system and addresses outstanding issues concerning the proposed Community patent.
2. The Communication suggested a working method aimed at finding consensus on a single patent litigation system in Europe. The Communication presents three options for a way forward, a draft European Patent Litigation Agreement (EPLA) prepared under the auspices of the European Patent Organisation, an alternative option favoured by various Member States proposing a 'Community judge' for European and Community patents and a Commission suggested compromise, given that neither EPLA nor the alternative model would seem to get the necessary support in the Council. The Communication suggests a unified court system that could be used for both European and Community patents. Such an approach could involve elements of both EPLA and the alternative model referred to above. However, the technical details of such an integrated approach would still need to be worked out.
3. As to the Community patent, the Communication proposed to have a fresh look at two features of the Common Political Approach of 3 March 2003. Such outstanding issues involve translations of patent claims into all Community languages and the centralised first instance jurisdiction. At this stage it would appear that, once a compromise on the jurisdictional issue (involving both European and Community patents) has been found, the only remaining obstacle for the creation of a Community patent would relate to translation issues. In this context the Presidency notes that the creation of a Community patent still enjoys strong support within the Council and that at the end there might be a need for a comprehensive compromise package.
4. The previous Presidency's progress report to COREPER (10710/07 + REV 1(en)) underlined that on the basis of its questionnaire (Council doc. 8566/07) and the Working Party's discussions progress has been achieved with respect to the awareness and knowledge of the factual and legal aspects concerning the litigation issue which need to be addressed in more detail before the Council can adopt conclusions by consensus.
5. The Portuguese Presidency suggests that work now focuses on the features and technical details required for a legally secure, cost effective and non-discriminatory patent litigation system around which consensus could be built among Member States and stakeholders. This work will take account of the comprehensive information on the features of the patent litigation schemes in all Member States and the factual material which is summarised in the Annex to this working document. This detailed overview is based upon the material that has been provided by the delegations in response to the questionnaire of the previous Presidency. The Presidency invites delegations to fill in any gaps in the attached tables which might exist in relation to their respective Member States in order to have a complete picture of the current situation in Member States.
6. While this factual material is helpful for assessing the impact of available options for a single European patent litigation system, there is a need for considerably intensifying the Council's continued search for effective solutions concerning a European-wide patent jurisdiction and the Community Patent. For this reason the Presidency has provisionally scheduled four Council Working Parties to take place during the second half of 2007. The first three Working Parties will be devoted to the main issues concerning the litigation system, while the fourth one will discuss outstanding issues related to the Community patent. This working document is therefore structured accordingly.
7. Work concerning features and technical details of the litigation system will focus on the following issues:
i. Degree and mode of decentralisation of the first instance of the litigation system;
ii. Features of the second instance;
iii. Qualification of judges and technical expertise in court proceedings;
iv. Allocation of cases and relationship with the Brussels I Regulation;
v. Rules of procedure;
vi. Provisional and precautionary measures;
vii. Operating costs;
viii. Arbitration procedures;
ix. Community patent.
The present working document provides for different options on each of those topics which should be considered as building blocks for achieving overall consensus. [...]"
Concerning the degree and mode of decentralisation of the first instance of the patent litigation system, contrary to the political approach of 2003, delegations now feel that the first instance should be decentralised. However, there are different degrees of decentralisation imaginable. From the discussions under the previous Presidency it appears that there is broad consensus about the need to have a centralised appeal court dealing with both matters of fact and law in relation to both infringement and invalidity. The discussions under the previous Presidency have furthermore shown that there is a need for ensuring technical expertise in the court proceedings both at first and second instance. One way of achieving this result would be to appoint not only legally but also technically qualified judges. Another way could be to have technically qualified assistants, however without a right to vote, to assist the judges throughout the handling of the case. In the context of the question of litigation costs the Document notes that in other fields of inter partes proceedings including IPR matters operating costs of tribunals and courts of law are normally borne by public budgets. In the case of an integrated patent judiciary possible options could thus involve financing of operating costs of regional chambers or decentralised first instance courts by Member States budgets and of the appeal court by the Community budget.
With regard to the translation problem in the context of an EU Community Patent, one possibility could be to provide for machine translations of patent claims. The Portuguese Presidency believes that this option merits further reflection and will in particular provide Member States with more information about the state of play of the EPO's European Machine Translation Programme.
Well, I would prefer an English-only solution because I'm a bit sceptical as to the possibilities in any foreseeable future of reliable automated translation of delicate linguistic structures as they are usually present in patent claims. However, I would accept to be proved wrong by facts, of course.
Document 11622/07 addressed to the Working Party on Intellectual Property (Patents) titled Towards an Enhanced Patent Litigation System and a Community Patent - How to Take Discussions Further. From the contents thereof:
Patents
