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Media Briefing Note - Decision Time: The EU Patent Finally to Become a Reality?

07 March 2011

LONDON, 07 MARCH 2011 - Tomorrow (8 March) will see the European Court of Justice (ECJ) give its opinion on proposals to set up a European and European Union Patents Court (EEUPC). Under the new agreement, the EEUPC would preside over cases to do with the infringement and validity of EU Patents as well as European patents granted by the European Patent Organisation (EPO).

Later in the week, on 10 March, the Council of the European Union will decide whether the long-awaited EU Patent will get the go-ahead to proceed via the enhanced cooperation procedure, despite the objections of Spain and Italy.

It is hoped that the EEUPC will cut costs and remove the commercial uncertainty of lengthy cross-border litigation, which can result in a patchwork of outcomes as each national court reaches its own conclusion on validity/infringement.

THE CURRENT SYSTEM

• At present, only national courts have jurisdiction in patent infringement cases. European Patents are granted by the European Patent Office (EPO) in Munich. However, on grant these take effect as a “bundle” of separate national patents in the 38 contracting states of the European Patent Convention (EPC) to which all 27 EU Member States, along with third countries like Switzerland or Turkey, belong.  Each national patent in the bundle must be translated into the local language before being validated by the national Patent Offices.

• Actions for infringement or for invalidity regarding any one particular patent of this "bundle" of European patents must be brought before the courts in the state where the particular patent exists. This is a costly drawback of the present system. The aim for many years has therefore been to set up a pan-European court system competent to decide on infringement and invalidity issues for all patents in the "bundle".

• An EU Patent, covering (as the Community Trade Mark) the whole area of the EU does not yet exist. The EU Member States have been unable to agree on the languages to be used, nor on a court system providing for a central enforcement of such a patent.  The so called EEUPC is intended for both the proposed EU patent as well as for European patents.

THE PROPOSED EUROPEAN PATENT

• Under the Commission proposal, the applicant would file the EU Patent application and the patent would be granted in one of the three current official EPO languages - French, German or English. 

• The applicant would have to provide translations into the other two official languages - but only for the section of the patent that defines the scope of the invention (the patent claims). It would then be enforceable throughout the EU as a single legal right. 

COMMENT

Winfried Tilmann, IPMT partner at Hogan Lovells, commented:

"If the ECJ demands fundamental changes in the proposed European court system for patents, this might jeopardise the draft Agreement. The consequence of this would be the use of the national courts as in the case of the Community Trade Mark system. This will be the case in particular, if the ECJ seeks a role for itself in the Patent Court, which is greater than the preliminary reference procedure applicable in national courts. Ultimately, this would not be received positively by the member states, by industry and by practitioners."

WHAT DOES THIS MEAN FOR BUSINESS?

• An EU Patent is designed to cut costs for European businesses.
• Cheaper to get a patent throughout Europe - EU patent avoids national validation costs and translation into multiple languages (especially beneficial for SMEs).
• Assuming EU patent is followed by the EU Patents Court, avoids multiplicity of proceedings across Europe and resulting patchwork outcomes.
• More cost effective to enforce.  One patent across Europe should lead to lower costs of enforcement for patent owners.
• Avoids forum shopping and blocking of proceedings by launch of torpedoes in slow moving jurisdictions.
• More consistency of decision making.  One court system to determine issues of infringement and validity should lead to a more unified interpretation of patent law across Europe.

 
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