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Monday, May 19, 2008

Draft Agreement on the European Union Patent Judiciary.

The EU Council has published

Document 9124/08 issued by the Slovenian EU Presidency and addressing the

Working Party on Intellectual Property (Patents). The title of the Document is Draft Agreement on the European Union Patent Judiciary.

The revised Presidency working document contains a Draft Agreement on the European Union Patent Judiciary for discussion at the meetings of the Intellectual Property (Patents) Working Party on 28 May and 11 June 2008. The revised version takes account of the discussions in the Working Party on 2, 8 and 25 April 2008 as well as of comments and observations received from stakeholders. Furthermore, it also comprises two lists of issues to be included respectively in the Statute of the European Union Patent Judiciary and in the Rules of Procedure, which need to be developed at a later stage.

Of particular insterest is the Draft wording of Article 28 on representation:

"[...] Article 28
Representation

(1) The parties shall be represented by lawyers authorized to practise before a court of a Contracting Party who may be assisted by a European Patent Attorney, who is a national of a Contracting Party entitled to act as professional representative before the European Patent Office (hereafter: European Patent Attorney), and/or by patent attorneys with proven patent litigation experience.

(2) Notwithstanding paragraph 1, European Patent Attorneys and patent attorneys with proven patent litigation experience who are in possession of a European Union Litigation Certificate may represent the parties in actions for revocation of a patent before the central division.

(3) Representatives of the parties and their assistants shall enjoy the rights and immunities necessary to the independent exercise of their duties.

(4) Representatives of the parties and their assistants shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know. [...]"

Paragraph 1 appears to resemble current German practice in litigation proceedings but paragraph (2) clearly falls back behind: Under the current rules valid in Germany, every German patent attorney ("Patentanwalt") is entitled to represent the parties in actions for revocation of a patent before the Federal Patents Court ("Bundespatentgericht"), no questions asked for additional Certificates.

And: What does it mean to misrepresent cases or facts before the Court either knowingly or with good reasons to know? If we have any suspicion that our client might have told us not the full truth, will be be obliged to cease representation?

The preliminary list of topics to be included in the Rules of Procedure of the European Union Patent Court comprises, inter alia,

Detailed language arrangements
Requirements for representatives
Requirements for European Patent Attorneys (including rules on EU patent litigation certificates or proof of patent litigation experience)
Privileges, immunities and facilities of representatives
Status of parties' representatives
Misrepresentation
Exclusion from proceedings
Use of electronic procedures
Electronic filing of submissions and evidence
Electronic communication
Serving of documents by electronic means

Hence, it looks as if the experts are very busy, on a more technical level, to hammer out Draft texts for the planned EU-wide patent litigation system. But never forget - the second half of 2008 will show us as to whether or not all this will become reality one day.

As it was to be expected, not everybody is enthusiasic over such plans. From the other end of the spectrum, see

this report authored by

Mr Ciarán O'Riordan, Member of

FSFE. It is a pity that he did not bother to disclose the whereabouts of that Working breakfast on Community Patent on which he reports. BTW,

FFII appears to be quite dead, at least concerning this matter.

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Do you know which article of the EC treaties it is based on?

Aas far as I can see, it is NOT using the treaties art 225 and 229 to build such specialized court.

It is an attempt to have some kind of EU-EPLA without the ECJ.

It is not gonna work.

# posted by

zoobab : 30 May, 2008 20:08

Mr Horns, would you care to take a look at the IPEG blog, and comment on the most recent item, about the bizarre decision from the OLG D'dorf?

# posted by

MaxDrei : 30 May, 2008 22:48