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European Patent Litigation Agreement

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European patent law
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The draft European Patent Litigation Agreement (EPLA), or formally the Draft Agreement on the establishment of a European patent litigation system, is a proposed patent law agreement aimed at creating an "optional protocol to the European Patent Convention (EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court".<ref> European Patent Office microsite, "Legislative Initiatives in European patent law", EPLA - European Patent Litigation Agreement, retrieved on July 11, 2006 </ref> In 1999, a Working Party on Litigation was set up by member states of the European Patent Organisation to propose an optional agreement on the creation of such a central judicial system. At its fifth meeting on 19 and 20 November 2003, the Working Party came up with a draft agreement and a draft statute for the European Patent Court. If the agreement enters into force, this would create a new international organisation with roughly the same competences as the United States Court of Appeals for the Federal Circuit (CAFC).

Currently, once granted, a European patent is enforceable on a country-by-country basis.<ref> "Any infringement of a European patent shall be dealt with by national law." Article 64(3) EPC </ref> In addition, once the 9-month opposition period is terminated, third parties wanting to invalidate a European patent must institute revocation proceedings in each country where the patent is in force. In 2006, the European Commission launched a public consultation on future patent policy in Europe,<ref> European Commission, DG Internal Market and Services, Consultation and public hearing on future patent policy in Europe, Retrieved on September 6, 2006. </ref> where the EPLA featured prominently next to the community patent, harmonisation and mutual recognition of national patents, and general issues. Both proponents and critics of the EPLA spoke out at the ensuing hearing on July 12, 2006.<ref> European Commission, DG Internal Market and Services, Consultation on future patent policy in Europe: Public hearing: Speeches and PPT presentations, Retrieved on September 6, 2006. </ref>

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[edit] Arguments of proponents

Proponents claim the present enforcement situation leads to high litigation and revocation costs for patent holders and third parties, to legal uncertainty (the same European patent may be revoked in United Kingdom while upheld in Germany because of the territorial principle after grant), cross-border injunctions and forum shopping (selecting the most favorable national court to institute litigation). Proponents claim this reduces the incentives to apply for a European patent and the situation is a burden on the competitiveness of the European economy, compared to the situation in the United States (see also EU's Lisbon Strategy). While a European single market is in place, there are still no centrally-enforceable patents within the European Union. Only national patent systems and a European patent system providing nationally-enforceable European patents, instituted by the European Patent Convention, exist. The EPLA is said to be an alternative to the stalled community patent proposal as it aims to solve similar problems.

On July 12, 2006, Charlie McCreevy, European Commissioner for Internal Market and Services, said "the European Patent Litigation Agreement is seen as a promising route towards more unitary jurisdiction"<ref> Charlie McCreevy, European Commissioner for Internal Market and Services, Closing remarks at public hearing on future patent policy, Public Discussion on Future Patent Policy in Europe, Brussels, 12 July 2006. Retrieved on August 30, 2006. </ref> while closing the abovementioned public hearing on future patent policy in Europe.

[edit] Arguments of critics

Critics claim that the main driving force behind the EPLA is legalising software patents and business method patents via case law, under the assumption that the European Patent Convention still forbids those with the European Patent Office nevertheless granting them since the mid 1980s.<ref> www.no-lobbyists-as-such.com The EPLA is the new attempt to make software patents enforceable in Europe, retrieved on July 11, 2006 </ref><ref> www.no-lobbyists-as-such.com The EPLA Road to Software Patents, retrieved on September 4, 2006 </ref> They also argue that the proposed "European Patent Judiciary" would lack independent judges and sufficient democratic control;<ref> wiki.ffii.org, FFII statement given at EU patent policy hearing, retrieved on August 1, 2006 </ref> while drastically increasing the number of patent litigation cases and additionally their respective costs,<ref> www.no-lobbyists-as-such.com, EU Patent Policy Post-Hearing Briefing Document, retrieved on September 4, 2006 </ref><ref> www.no-lobbyists-as-such.com, Manuscript for my speech at the European Commission’s upcoming hearing on the future of the European patent system, retrieved on August 1, 2006 </ref> none the least because of the need to generate revenue for self-financing.<ref> wiki.ffii.org, European Patent Litigation Agreement (EPLA) will make software patents enforceable, retrieved on July 11, 2006 </ref>

The EPLA would likely infringe the acquis communautaire as it is no EU regulation.<ref> www.no-lobbyists-as-such.com, European Commission may ask European Court of Justice for opinion on EPLA ratification, retrieved on July 11, 2006 </ref> The EPLA is advocated as an alternative EPO model to the Community Patent which gives the EU less say and preserves the institutional role of the EPO/EPC (no EU regulatory bodies/frameworks). So institutional questions are of importance. For instance, Community Patent critics and Spain put forward language reasons which caused the legislative project of the EU Community Patent to stall (May 18, 2004). The EPLA in conjunction with the London Agreement would provide no advantage in matters of languages. [citation needed]

The abovementioned consultation on future patent policy in Europe was criticised on several occasions of being partial to presumable EPLA proponents.<ref> FFII e.V.: consultation.ffii.org The Community Patent Consultation, retrieved on September 6, 2006 </ref>

[edit] Legal provisions

The 2003 draft agreement provides the creation of a "European Patent Judiciary (EPJ)", a financially autonomous organisation, comprising:

  • a "European Patent Court" competent to decide on infringement relating to European patents and including a "European Patent Court of Appeal"; and
  • an "Administrative Committee".

[edit] Competence problems

It is not clear yet whether the countries which are members of the European Union have the competence to institute such a system or whether the competence is exclusively in the hands of the European Union (see EC Regulation 44/2001<ref> Official Journal of the European Communities, January 16, 2001 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters </ref>).

France may also have constitutional problems to sign and ratify such a far-reaching agreement.<ref> IPR, innovation and economic performance, OECD Conference, Paris 28/29 August 2003, page 5, second slide of (pdf) </ref>

[edit] Trivia

The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law.<ref> Swiss Federal Institute of Intellectual Property, European Patent Litigation Agreement (EPLA), retrieved on July 11, 2006 </ref>

[edit] References

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[edit] See also

[edit] External links

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