SKIS IN THE DESERT -- THE COMMUNITY PATENT COURT

According to a Press Release dated 2 February, the European Commission has presented proposals for two Council Decisions on the proposed Community patent. The first would confer formal jurisdiction on the European Court of Justice to deal with alleged infringements of Community patents and challenges to the validity of patents. The second would establish (i) the Community Patent Court, whose seven judges would exercise the Court of Justice's jurisdiction on its behalf and (ii) a specialised chamber within the Court of First Instance to hear appeals against the Community Patent Court's judgments, those appeals being subject to review by the Court of Justice. Internal Market Commissioner Frits Bolkestein said:

"To maximise the benefits of the Community patent, we need a single Community Patent Court, under the ultimate jurisdiction of the European Court of Justice, so that disputes are judged with EU-wide effect. I am confident the Council will adopt the necessary decisions quickly, as broad agreement in principle was already reached at the March Competitiveness Council. But of course, setting up the jurisdictional arrangements without finalising adoption of the Community Patent Regulation itself is about as useful as a new pair of skis in the desert. So above all I hope the Council will agree on the final points of detail on the Community patent still at issue and adopt the Regulation. Europe's companies have been crying out for too long for access to pan-European patent protection at reasonable cost with minimum red-tape and maximum legal certainty".

The IPKat thinks this sounds suspiciously like Euro-waffle. All companies, European and otherwise, complain about the cost of patent systems (in many cases with considerable justification). But the IPKat, whose ear is pretty close to the ground, has not heard many of them crying out for a pan-European panacea in the form of the Community patent. This creature is the dreamchild of European Union bureaucrats, who believe that a single territory and a single market demand a single patent. Let’s see how many of these companies actually use the system when it comes into force, applying for a patent which -- depending on whether it is granted -- will protect either all or none of the 25 countries that will constitute the world’s most valuable market. But that’s not all. The Press Release continues:

“To provide a less wasteful and costly system, the Community Patent Court would operate according to a single set of procedural rules, with a uniform case law and with costs affordable for users and in particular for SMEs. Thus, the jurisdiction regime proposed would ensure that disputes over Community Patent rights were judged with EU-wide effect by a single centralised and specialised court. That would provide legal certainty for the protection of inventions throughout the Union”.

What does this mean? The IPKat notes that “legal certainty” is heralded, though the identity of the seven judges (who will be political appointees, nominated by the Council of Ministers) is currently unknown. Also, until the Community Patent Court starts hearing cases, there isn’t going to be any “uniform case law” for the court and litigants to rely on. When the court’s doors open, who will be the first brave guinea pigs to rush in?

More on the Community Patent Regulation 2003 proposal, 2000 proposal, 1997 Green Paper
Comments on the Community Patent Regulation from the ICC, CEFIC, US attorney Edward G. Fiorito and the UK Patent Office
A poor man’s tale of a patent here
Click here for Euro-waffle , Euro-fudge and Euro-guinea pigs