Chill sends shivers down Euro-patentees' spines as Warsaw feels the Draft ...

Feeling the chill ...
All the way from Brussels is the latest (7 October 2011) version of the Draft agreement on a Unified Patent Court and draft Statute - Revised Presidency text, which you can read in its magnificent fullness here. Changes to the draft are underlined, which at least makes them easier find, if not necessary to swallow. As the document states, this is:
" a revised Presidency compromise proposal concerning the draft agreement, to serve as the basis for the discussions at the technical drafting session to be held from 12 to 14 October 2011 in Warsaw. 
Changes in relation to the previous version (13751/11 + COR 1) are marked".
This Kat isn't going to have much time between now and the beginning of the Warsaw technical drafting session to dedicate the time to this 100-page document that it deserves, but he hopes that some of his readers will be able to do so. He can tell them that there are a few interesting marked changes in the following places:
  • Article 6: Composition of the panels of the Court of First Instance
  • Article 7: The Court of Appeal
  • Article 13: Pool of Judges
  • Article 14e: Sources of Law
  • Article 14h: Limitations of the effects of the European patent
  • Article 15a: Competence of the divisions of the Court of First Instance
  • Article 15b: Relation with the jurisdiction of courts of States not party to this Agreement
  • Article 18: The Budget of the Court (Merpel wonders if anyone has thoughts about this:
"Art.18(3) Court fees shall be fixed by the Administrative Committee. The Court fees shall be fixed at such a level as to ensure a right balance between the principle of fair access to justice, in particular for small and medium-sized enterprises and micro entities and an adequate contribution of the parties for the costs incurred by the Court, recognising the economic benefits to the parties involved, and the objective of a self-financing Court with balanced finances. The level of the Court fees shall be reviewed periodically by the Administrative Committee. Targeted support measures for small and medium-sized enterprises and micro entities might be considered".
  • Article 55: Rehearing
  • Article 58: Transitional period
Another choice document which affects the future of European patent litigation and the unitary patent court proposal is this non-paper (official title "Compatibility of the draft agreement on the Unified Patent Court with the Union acquis - Non-paper from the Commission services"), which calls for a clarification of the relationship between the Brussels I Regulation and the draft agreement on the Unified Patent Court in the manner which it suggests earlier in the non-paper and concludes:
"... The Commission services recall that the revision of the Brussels I Regulation is ongoing before the co-legislators. In addition, changes to the draft UPC Agreement should be made. It does not appear that issues of compatibility with other Union instruments would arise. A technical analysis of each of the provisions of the draft UPC Agreement should continue. 
It is clear that many procedural matters will need to be regulated in the rules of procedure. It is obvious that such rules will also need to comply with the relevant Union legislation. The UPC Agreement should clearly provide for this and foresee a mechanism how such compliance with the acquis may be ensured".
In other words, there's still some work to do  -- and it can't be done till we get our hands on the proposed court's rules of procedure. These are crucial to the success of the system since their number, their complexity and their ease of compliance by litigating parties and their representatives will determine how well the system works -- and how much it costs, one of the main worries of many prospective patent litigants.  Merpel's still grumbling about this ugly Euro-speak in which the word 'foresee' is used where what is meant in traditional English is 'provide'.

The IPKat thanks the peerless Professor Steve Peers for both these leads.
Chill sends shivers down Euro-patentees' spines as Warsaw feels the Draft ... Chill sends shivers down Euro-patentees' spines as Warsaw feels the Draft ... Reviewed by Jeremy on Monday, October 10, 2011 Rating: 5


  1. There is still a pending issue, that is not discussed in this new draft, nor on the "Compatibility of the draft agreement on the Unified Patent Court with the Union acquis" non-paper which is the power of Member States to conclude such an international agreement on their own, without EU being a party to this agreement.

    Given CJEU caselaw since the "AETR case", it is likely that it would be impossible.

  2. That is the price one has to pay for having its language being used as "lingua franca".

  3. Gibus - I think it is perfectly possible for the Member States to go ahead to sign this treaty without the EU's participation. The ERTA/AETR judgment only concerned the *external* competence of the EC/EU, ie what happens in relations between the EC/EU/Member States on the one hand and *third States* on the other. But no third (ie, non-EU) States will be party to the patent litigation treaty, since the ECJ judgment in Opinion 1/2009 effectively ruled that out.

    True, Member States are still bound not to infringe EU law when signing up to the patent litigation treaty. But as the Commission argues in its non-paper, any incompatibility between the treaty and EU law can be solved simply by revising the Brussels I Regulation.

  4. And a couple of further points.

    1) on the rules of procedure for the planned court, there is a partial draft from 2009 online -

    2) The European Parliament has now drawn up draft opinions on the litigation treaty and the two legislative proposals. It only has co-decision rights on one of the legislative proposals, but will likely (as it does in other areas) try to leverage its influence on one proposal to seek changes on others.

    The draft opinions are below - the Council has already begun informal talks with the EP on them. One particularly interesting point - the EP wants the unitary patent to operate and the litigation treaty to enter into force when the treaty is ratified by 9 Member States, including the 3 where the most European patents are held. This is slight variation on the London Agreement, which has actually entered into force, unlike the EU's prior attempts in this area. So this approach, if followed, would obviously increase the chance that the EU's next attempt will be successful, and that the unitary patent and the new patent court will at least apply in some Member States.

    patent regulation -

    translation proposal -

    litigation treaty -

  5. Thanks Steve for the clarification. Nevertheless it is quite strange that after the CJEU asks that the patent jurisdiction to be fully included in the legal and jurisdictional system of the Union, the EU itself steps back from the agreement setting up this jurisdiction.

    About the drafts from the European Parliament on the unitary patent regulation. The committee on Legal Affairs (JURI) is in charge to propose a report, while the committee on Industry, Research & Transport (ITRE) should draft an opinion. Both drafts are taking the form of amendments to the original Commission proposal.

    I've opened to comment both reports: ITRE Opinion and JURI Report. Finally, the original Commission proposal is also commentable, and amendments agreed by Council have already been entered in comment.


All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.

It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.

Learn more here:

Powered by Blogger.