European patent judges force volte-face by Commission

The IPKat picked this up in the current issue of Legal Week, which reports how senior judges, campaigning to secure a European patent court, have won their first major victory by forcing the European Commission to drop its outright opposition to their proposals. With some reluctance the Commission has agreed to consult on the plans, which are backed by an array of top European intellectual property judges including Lord Hoffmann and Lord Justice Jacob from the British Isles.

The Commission's survey, blogged earlier by the IPKat here, asks a wide range of IP practitioners and organisations across Europe for their feedback on the blueprint, dubbed the European Patent Litigation Agreement (EPLA). The EPLA proposes the establishment of a unified European court to hear appeals from eight local ‘sub-courts’ in certain key jurisdictions. The request for feedback on the plan marks a significant policy shift for the Commission. The consultation ends on 31 March 2006. Unnamed UK IP lawyers have told Legal Week they now hope a treaty on the EPLA will be approved by European Union member states by the end of the year. A unified court could then be in place within three years.

The Commission had wanted to create a centralised court in Luxembourg to police a new European patent. The IPKat says, forget it.

What the Commission questionnaire says:

"Section 3 – The European Patent System and in particular the European Patent Litigation Agreement

Since 1999, States party to the European Patent Convention (EPC), including States which are members of the EU, have been working on an agreement on the litigation of European patents (EPLA). The EPLA would be an optional litigation system common to those EPC States that choose to adhere to it.

The EPLA would set up a European Patent Court which would have jurisdiction over the
validity and infringements of European patents (including actions for a declaration of noninfringement, actions or counterclaims for revocation, and actions for damages or compensation derived from the provisional protection conferred by a published European patent application). National courts would retain jurisdiction to order provisional and protective measures, and in respect of the provisional seizure of goods as security. For more information see [] Some of the states party to the EPC have also been tackling the patent cost issues through the London Protocol which would simplify the existing language requirements for participating states. It is an important project that would render the European patent more attractive.

The European Community is not a party to the European Patent Convention. However there is Community law which covers some of the same areas as the draft Litigation Agreement, particularly the "Brussels" Regulation on Recognition and Enforcement of Judgments (Council Regulation 44/2001) and the Directive on enforcement of intellectual property rights through civil procedures (Directive 2004/48). It appears that there are three issues to be addressed before EU Member States may become party to the draft Litigation Agreement:

(1) the text of the Agreement has to be brought into line with the Community legislation
in this field;

(2) the relationship with the EC Court of Justice must be clarified;

(3) the question of the grant of a negotiating mandate to the Commission by the Council of the EU in order to take part in negotiations on the Agreement, with a view to its possible conclusion by the Community and its Member States, needs to be addressed.


3.1 What advantages and disadvantages do you think that pan-European litigation arrangements as set out in the draft EPLA would have for those who use and are affected by patents?

3.2 Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in your view would be the ideal patent litigation scheme in Europe?".

The IPKat was initially sceptical of the EPLA plan, but has now rather come round to it. Anything is more workable than the Commission's original proposals. But judges have a highly pathological view of patent disputes, since they only see the disputes that get to court. IP practitioners have many disputes that are resolved through negotiation, mediation or other means and their view of the court system is coloured by its broader context. It is thus vital to know what practitioners think.

EPLA documents here.

Treaty accessions

What do Azerbaijan and Benin have in common? Not a lot, you might think, but the IPKat knows better. Both have signed up for the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. In Azerbaijan's case the two treaties come into force on 11 April 2006 (see here and here). In the case of Benin the twin treaties operate five days later, on 16 April 2006 (see here and here).

Full list of all 58 WIPO Copyright Treaty contracting states here
Full list of all 57 WIPO Performance and Phonogram Treaty contracting states here
Number of Google hits for Azerbaijan + Benin: 46,400,000

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