Breaking News fom EU Deliberations on EU Patent Jurisdiction.
Something like a common EU position on a EU Patent Jurisdiction appears to be visibly emerging.
On February 04, 2008, the Slovenian EU Presidency had issuedDocument 5954/08 addressed to the Working Party on Intellectual Property (Patents). The paper had been titled "EU Patent Jurisdiction - Main features of the Court system (first part); Remedies, procedures and other measures (second part)". The first part contains a revised version of Document 14492/07 and takes into account remarks made by delegations at the meeting of the Working Party on 07 November 2007, whereas the second part contains a revised version of Document 5245/08 and takes into account remarks made by delegations at the meeting of the Working Party on 25 January 2008.
Now, another version of the same project has surfaced in Document 7001/2008. As usual, there is no redlining; hence, it is a bit difficult to find out the amendments.
However, one big news is that apparently EU Member States are ready to agree on a modified regime of representation according to which any European Patent Attorney with EU certificate should be allowed to solely represent a party. Specific training for European Patent Attorneys and lawyers could be envisaged in order to promote efficient and sound litigation proceedings.
The language of the previous version had been more reluctant, i.e. any European Patent Attorney should be allowed to speak at hearings. It should be explored to what extent, and under which circumstances, European Patent Attorneys with proven legal knowledge and experience could solely represent a party.
But what the heck is meant by "EU certificate"? Was it intended to say that a European Patent Attorney entitled to represent must be seated in a EU Member State, discriminating Swiss and Norwegian members of the profession, or is that certificate some sort of addtitional professional qualification?
Other points of interest might, inter alia, include:
The ECJ would be able to ensure the uniformity of the Community legal order. For this reason a reference on points of law (cassation) to the ECJ should be foreseen. In order to avoid that parties systematically refer appeals to the ECJ, extending the length of the procedure unnecessarily, the ECJ should be entitled to grant the leave to appeal (certiorari).
In the absence of a local or regional division with territorial competence for the MS where the plaintiff could bring an action the case could be brought before the central division.
The parties should, before all divisions and at their request, be provided by the division concerned with interpretation to assist them in presenting and defending their case to the extent necessary. The creation of a European list of specialised patent interpreters and of a separate training framework financed by the Community could be explored.
The central division should be composed of panels consisting of three judges. The previous version had provided for five judges.
The transitional period as such should be kept short for reasons relating to the efficiency of the system which relies on a critical mass of cases being processed. However, it could be explored whether patentees should be given, for European patents granted prior to the date the EU patent jurisdiction has become operational, the possibility to opt out of the system. Such derogation from the exclusive nature of the jurisdiction would require that opt-outs are notified to and published by the Registry before expiry of a cut-off date.
It could be also explored whether during the transitional period local divisions in those MS having hitherto little experience in patent litigation should in all cases involving parties from more than one MS or affecting the territories of more than one MS be composed of one national judge and two judges from the European pool of patent judges (one technically and one legally qualified). This would further increase trust of the users, encourage them to bring cases before local divisions and help to enhance spreading of experience with patent litigation across Europe.
The parties are dominus litis of the procedure; however, the Court has an active role in conducting the procedures. The Court should be free to disregard any statement of fact for which no proof is offered.
The Court should be able, if necessary, to order a party to offer a proof. In infringement cases, the evidence is usually to be found under the control of the infringer (manufacturer or distributor). The main rule should therefore be that the Court may order the production of specified evidence which lies in the control of the alleged infringer. Such orders should not result in an obligation of selfincrimination. Under certain conditions it should even be possible for the Court to order a third party to produce specified and relevant evidence. When there are good reasons to expect that evidence would be destroyed, the Court should be able to order the preservation of evidence.
It has been emphasized that Judges should for example be able to take into account the prejudice of the defendant if the products in question are removed from the market as well as the fact that the applicant does not manufacture or commercialize competing products, but is only looking for royalties.
Well Mr Horns, I would guess that the EU Certificate idea comes from the "Certificate" that a UK registered patent attorney needs, to become a "UK Patent Attorney Litigator". The English courts think that 1) being a patent attorney, qualified by strict examination, isn't enough but that 2) properly qualified patent attorneys are well able to look after the interests of their clients in court, without any help from a solicitor or barrister. Are the English courts labouring here under a grave misapprehension? Or are they pragmatic, and right?
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
had issued 
Document 5954/08 addressed to the Working Party on Intellectual Property (Patents). The paper had been titled "EU Patent Jurisdiction - Main features of the Court system (first part); Remedies, procedures and other measures (second part)". The first part contains a revised version of Document 14492/07 and takes into account remarks made by delegations at the meeting of the Working Party on 07 November 2007, whereas the second part contains a revised version of Document 5245/08 and takes into account remarks made by delegations at the meeting of the Working Party on 25 January 2008.
Patents
