European Patent Litigation Agreement
Encyclopedia
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".
period under has expired, there is no centralised way of challenging the validity of a granted patent.
Furthermore, Council Regulation (EC) No 44/2001 "on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters" does not adequately deal with the particular complications thrown up by intellectual property disputes. Such disputes are typically based on parallel national rights rather than European-wide rights.
As a consequence, parties wishing to litigate a patent often find themselves in the unsatisfactory position of having to litigate as much about where and when disputes should be heard and decided as about the real underlying dispute.
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. The EPO level proposal parallized a similar EU level proposal for a Luxembourg European Patent Court by the European Commission and Council in conjunction with the community patent
.
In 2006, the European Commission
launched a public consultation on future patent policy in Europe, 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.
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" while closing the abovementioned public hearing on future patent policy in Europe.
In October 2006 the European Parliament
adopted a resolution on Future action in the field of patents. As regard to the EPLA it considered "that the proposed text needs significant improvements, which address concerns about democratic control, judicial independence and litigation costs, and a satisfactory proposal for the Rules of Procedure of the EPLA Court;" and asked its Legal Service to provide an interim legal opinion on a potential overlap with the acquis communautaire.
In November 2006, an informal panel of judges from different European countries met in San Servolo
, Italy
, and adopted rules of procedures for the EPLA court. They signed a Resolution, the so-called "Second Venice Resolution".
In February 2007, an interim legal opinion of the Legal Service of the European Parliament was non-officially published and provided a negative opinion on the EPLA. The opinion concludes that the EPLA, specifically compliance by the Member States of the European Union with Article 98 EPLA, would prima facie
constitute a breach of Article 292 of the EC Treaty. As a result, the European Community's competence would be exclusive for the matters governed by EPLA and Member States therefore would not entitled on their own to conclude that Agreement.
Earlier, on January 30, 2007, Sir Nicholas Pumfrey
, a British judge supporting the EPLA, is reported to have told the audience at a seminar in London
that it appeared that the EPLA had "finally died". "It is a minor but quite important disaster. We thought we had done it", he added.
The European Patent Judiciary (EPJ) would make current national patent courts obsolete. However, the EPJ may install regional chambers.
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
).
France
may also have constitution
al problems to sign
and ratify such a far-reaching agreement.
.
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
agreement aimed at creating an "optional protocol to the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
(EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court".
Background
Under , any infringement of a European patent is dealt with under national law. Additionally, once the 9 month oppositionOpposition procedure before the European Patent Office
The opposition procedure before the European Patent Office is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed...
period under has expired, there is no centralised way of challenging the validity of a granted patent.
Furthermore, Council Regulation (EC) No 44/2001 "on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters" does not adequately deal with the particular complications thrown up by intellectual property disputes. Such disputes are typically based on parallel national rights rather than European-wide rights.
As a consequence, parties wishing to litigate a patent often find themselves in the unsatisfactory position of having to litigate as much about where and when disputes should be heard and decided as about the real underlying dispute.
History
In 1999, a Working Party on Litigation was set up by member states of the European Patent OrganisationEuropean Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
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. The EPO level proposal parallized a similar EU level proposal for a Luxembourg European Patent Court by the European Commission and Council in conjunction with the community patent
Community Patent
The EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent...
.
In 2006, the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
launched a public consultation on future patent policy in Europe, 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.
On July 12, 2006, Charlie McCreevy
Charlie McCreevy
Charles "Charlie" McCreevy is a former Irish politician. He was the European Commissioner for Internal Market and Services from 2004–2010. He was first elected to Dáil Éireann as a Fianna Fáil TD in 1977 and held the seat in Kildare until 2004 when he became Ireland's European Commissioner...
, European Commissioner for Internal Market and Services, said "the European Patent Litigation Agreement is seen as a promising route towards more unitary jurisdiction" while closing the abovementioned public hearing on future patent policy in Europe.
In October 2006 the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
adopted a resolution on Future action in the field of patents. As regard to the EPLA it considered "that the proposed text needs significant improvements, which address concerns about democratic control, judicial independence and litigation costs, and a satisfactory proposal for the Rules of Procedure of the EPLA Court;" and asked its Legal Service to provide an interim legal opinion on a potential overlap with the acquis communautaire.
In November 2006, an informal panel of judges from different European countries met in San Servolo
San Servolo
San Servolo is an Italian island in the Venetian Lagoon, to the southeast of San Giorgio Maggiore.- History :Benedictine monks lived on this island from at least the eighth century and for almost five hundred years. They were joined later by nuns escaping from the convents of Saints Leone and...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, and adopted rules of procedures for the EPLA court. They signed a Resolution, the so-called "Second Venice Resolution".
In February 2007, an interim legal opinion of the Legal Service of the European Parliament was non-officially published and provided a negative opinion on the EPLA. The opinion concludes that the EPLA, specifically compliance by the Member States of the European Union with Article 98 EPLA, would prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
constitute a breach of Article 292 of the EC Treaty. As a result, the European Community's competence would be exclusive for the matters governed by EPLA and Member States therefore would not entitled on their own to conclude that Agreement.
Earlier, on January 30, 2007, Sir Nicholas Pumfrey
Nicholas Pumfrey
Sir Nicholas Richard Pumfrey, styled The Rt Hon. Lord Justice Pumfrey, was a British barrister. He served as a High Court judge for 10 years, and was promoted to the Court of Appeal little more than a month before his sudden death.- Early life and education :The son of Peter and Maureen Pumfrey,...
, a British judge supporting the EPLA, is reported to have told the audience at a seminar in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
that it appeared that the EPLA had "finally died". "It is a minor but quite important disaster. We thought we had done it", he added.
Content
The 2003 draft agreement provides the creation of a "European Patent Judiciary (EPJ)", comprising:- a "European Patent Court" competent to decide on infringement relating to patents of EPO member states and including a "European Patent Court of Appeal"; and
- an "Administrative Committee".
The European Patent Judiciary (EPJ) would make current national patent courts obsolete. However, the EPJ may install regional chambers.
Competence problems
It is not clear yet whether the countries which are members of the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
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
Brussels Regime
The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union and the European Free Trade Association...
).
France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
may also have constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al problems to sign
Signature
A signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...
and ratify such a far-reaching agreement.
Name
The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
See also
- European patent lawEuropean patent lawEuropean patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations....
- Community patentCommunity PatentThe EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent...
- London AgreementLondon Agreement (2000)The London Agreement, formally the Agreement on the application of Article 65 of the Convention on the Grant of European Patents and sometimes referred to as the London Protocol, is a patent law agreement concluded in London on 17 October 2000 and aimed at reducing the translation costs of European...
- Brussels RegimeBrussels RegimeThe Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union and the European Free Trade Association...
, i.e. Brussels Convention, the Lugano Convention, and the Brussels I Regulation (Council Reg (EC) 44/2001) - Directive on the enforcement of intellectual property rightsDirective on the enforcement of intellectual property rightsDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is a European Union directive in the field of intellectual property law, made under the internal market provisions of the Treaty of Rome...
- Directive on criminal measures aimed at ensuring the enforcement of intellectual property rightsDirective on criminal measures aimed at ensuring the enforcement of intellectual property rightsThe European Union directive on criminal measures aimed at ensuring the enforcement of intellectual property rights was a proposal from the European Commission for a directive aimed "to supplement Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights " The...
(proposed)
External links
- European Patent Office web site (including additional links)
- European Patent Lawyers AssociationEuropean Patent Lawyers AssociationThe European Patent Lawyers Association ) is a professional association of patent lawyers, with a registered office in Brussels, Belgium...
(EPLAW) web site- First Venice Resolution (November 2005)
- Second Venice Resolution (November 2006)
- European Patent Litigation Agreement (EPLA) on the CEIPICentre for International Industrial Property StudiesThe Centre for International Intellectual Property Studies, or Centre d'Etudes Internationales de la Propriété Intellectuelle in French , is a Strasbourg, France-based training centre for specialists in intellectual...
web site