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Monday, November 05, 2007

Still Another Paper Of EU Presidency On Proposed EU Patent Jurisdiction.

The Portuguese EU Presidency has created another

Document 14492/07 titled Towards an EU Patent Jurisdiction - Points for discussion addresses to the Working Party on Intellectual Property (Patents). The present working document aims at setting out in more technical detail the possible features of a future unified and integrated patent litigation system which, it is hoped, could find the support of Member States (MS) and users. It is based on the results of the deliberations of the Council Working Group following the Commission's Communication dated April 03, 2007, and previous work carried out by MS and users, in particular in the context of work on the European Patent Litigation Agreement (EPLA). Moreover it reflects the first reactions of Member States and stakeholders during informal consultations carried out during the months of September and October 2007.

Under the proposal as on file now, the EU Community would establish a specific training framework for patent judges and create a pool of experienced judges that could reinforce local and regional divisions:

A pool of patent judges would be created at Community level. The purpose of the pool would be to provide reinforcements for local divisions and to spread knowledge and experience throughout the Community.
This pool should consist of legally and technically qualified judges and cover all fields of technology.
The pool should draw on experienced practitioners including judges from local and regional divisions and the central division.

There are concessions in particular with regard to the German position insisting on the involvement of technical judges:

The judges of all divisions shall have a proven knowledge and experience in patent litigation.
Where necessary training could be provided under the EU training framework.
The central division of the first instance and the second instance should be composed of mixed chambers of legally and technically qualified judges.
Such technically qualified judges would have university diplomas in scientific or technical disciplines and appropriate knowledge in patent law and litigation. Where necessary, training could be provided under the EU training framework. In each chamber legally qualified judges should be in majority (i.e. two out of three or three out of five).

According to the proposal, judges could be recruited amongst members of the EPO or national offices' Boards of Appeal, patent judges, patent attorneys (!), etc. All judges of the EU patent jurisdiction would be appointed by the EU Council, acting unanimously, following consultation of an advisory committee which shall be set up for this purpose. Furthermore, an advisory committee, chosen from among the most experienced patent judges or patent lawyers of recognised competence and appointed by the Council, should prepare lists of suitable candidates for appointment as judges of the EU patent jurisdiction.

And, a another (second) pool of technical experts would be created at Community level. Such experts would provide the judges and the parties with expertise in all fields of technology. According to the recent proposal, the list of the experts concerned should be established by the advisory committee. The pool of technical experts appears to be crafted as a tool for avoiding further discussions on any rights of patent attorneys to represent their Clients before the EU patent jurisdiction as now proposed by the Portuguese EU Presidency. Those who do not want to see patent attorneys acting before this sort of court will be able to argue that their specific technical qualification is superfluous because of all required technical expertise can be drawn from the pool of technical experts filtered by those most experienced patent judges or patent lawyers. Under worst-case assumptions this will mean that in future even patent attorneys entitled to participate in national infringement proceedings (e.g. in Germany) will most likely get deprived of this privilege on EU level. However, if the basic principle of protection of acquired possession is taken seriously by the EU Commission and by the EU Council, a window of opportunity for an amicable solution of this problem should be open at least with regard to revocation proceedings: According to the proposal, the central division of the anticipated new European court system should in particular be hearing direct actions concerning the revocation of patents. There appears to be no stringent reason why patent attorneys entitled to represent their clients in national patent revocation proceedings should be excluded from doing so in the same sort of proceedings before the central division.

See also my earlier posting

here.

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Where I find the document somewhat confused is in that the proposed courts would not just have jurisdiction over the Community patents, but also over European patents. Either that would apply only for designated states that are also EU members, or I think that somebody has forgotten about the EPO member states that are not EU members. And I don't think that the Swiss and the Norwegians are going to be very happy about that...

# posted by Anonymous : 08 November, 2007 16:26