December 7, 2009

European Council Adopts Conclusions on Enforceable European Patent and Unified European Patent Litigation System

The European Council, the decision-making body of the European Union [EU], adopted conclusions on its vision for unified European patents and patent courts as a “basis for continuing work.” The “European and EU Patents” court would have exclusive patent jurisdiction for European patents and EU patents, with local divisions taking infringement cases, a central division taking cases limited to validity, and a court of appeal over both.  When there is a counterclaim for revocation in an infringement case, the local division can proceed with an additional technical judge qualified in the patent’s field, send the revocation counterclaims to the central division and stay its proceedings, or, if the parties agree, send the whole case to the central division.  The new courts would operate side-by-side with national courts for an unstated period of time to build confidence and experience in the European Patent Court system, after which it would have exclusive jurisdiction for EU and European patents.  Contracting states that are not EU member states may have local divisions.

EU patents and applications will have “progressive” renewal fees to be shared 50-50 with the EPO (sufficient to cover costs at the EPO ) and Member States (“for patent-related purposes”; presumably, not open to the type of fee diversion enjoyed lately by the US Congress).  A plan for “enhanced partnership” will distribute work among the EPO and national patent offices.  Member States are not ceding sole authority for granting and enforcing patents to the union.  Thus, under this proposal, one could be liable under both a German and a European patent, for example.  A provision for pre-emption of any national patents in the event a European patent issues would prevent lift the specter of conflicting national and EU decisions but still allow a choice of national patents.

Earlier efforts to adopt a single enforcement system begun in 2000 broke down in 2004 over details of translations into national languages.  The EPO has a history of the work to unify European patent litigation here.  Language remains an issue to be resolved.  The European Council proposes court proceedings in the local language for local divisions (with an option to designate an official language of the EPO) and the language of the patent for the central division.  As for translation requirements for the EU patent, the Council punted, requiring a separate regulation still to be worked out.