Breaking: Updated Draft Agreement on Unified Patent Court published

The AmeriKat waiting for the
consolidated texts of the Draft
Agreement and Proposed Regulation....

After months of waiting, this morning the Cypriot Presidency published the new draft of the Unified Patent Court agreement. The draft incorporates elements agreed at the 5 December 2011 Competitiveness Council and June's European Council meeting - all of which have not, until now, come to light.

The main changes, as set out in the covering memo, are as follows:

1. The definition of “European patent” in Art. 2 point (5) has been adapted to make it clear that the Court shall have the same jurisdiction with regard to European patents as national courts currently have. In this context, Art. 15b has been moved up as Art. -15 in order to clarify that the jurisdiction of the Court does not lag behind the jurisdiction of national courts in the area of patents as far as the exclusive competence of the Court in that area is concerned.

2. Article 5(3) has been amended in order to clarify that it will be possible to set up an additional local division for every one hundred patent cases.

3. Article 6(3) was amended in order to clarify what happens in situations where the exact number of 50 cases occurred.

4. In Article 6(4), the term "permanent" in the expression "permanent legally qualified judge" was deleted in order to align the wording with the preceding paragraphs. In the same paragraph, the reference to “regional list” was deleted, given that no such list is provided for in Art. 15.

5. The institutional provisions relating to the Administrative Committee, the Budget Committee and the Advisory Committee have been moved into Chapter I. For the Budget Committee, a new paragraph (3a) has been added to allow for the Budget Committee to adopt its rules of procedure.

6. In order to avoid possible misunderstandings, Union law was moved up in the list of sources of law for the UPC in Art 14e.

7. The terminology of Articles 14f to 14h has been aligned with that of Articles 6-8 of the draft UPP Regulation, the acquis and international Treaties.

8. In Article 21, the reference to the Statute was erroneous given that the latter does not contain any provisions on the costs relating to the functioning of the Centre. The current version proposes therefore that such costs be covered by the budget of the Court, in line with the costs for the training framework for judges (see Art. 20).

9. The previous Article 27 was split into two Articles (i.e. 26a and 27) in order to distinguish more clearly the question of legal capacity from the question of who may have legal standing before the Court.

10. In Article 28, an effort was made to clarify the status and the role of patent attorneys in the proceedings before the Court. Account has been taken of the fact that the concept of "patent attorney" might not be known in all Contracting States.

11. The provisions of Chapter IV (Powers of the Court) have been aligned more closely to the corresponding provisions of the Enforcement Directive.

12. The Final provisions have been streamlined. Article 58f (Languages of the Agreement) has been aligned on the corresponding provision of the EPC. Finally, Article 59 provides now for a single entry into force of the Agreement, which shall depend inter alia upon the prior entry into force of any amendments of Regulation (EC) 44/2001 are deemed necessary to accommodate the setting up of the UPC.

13. Finally, in Article 6 of the Statute (Immunity of judges) the wording has been aligned to that concerning judges of the Court of Justice of the European Union.

The AmeriKat has not yet had an opportunity to scrutinize the consolidated text but the location of the Central Division as proposed by the EU Council in June (Paris with divisions in London and Munich) have now been included in updated Draft Agreement. She also notes that Articles 14f-14h were amended to match the wording of Articles 6 to 8 in the Proposed Regulation - meaning that for now Articles 6 to 8 remain in the Proposed Regulation.

The Draft Agreement will be discussed with the Friends of the Presidency group on 5 October 2012, in advance of the European Parliament's Legal Affairs Committee meeting on 10-11 October 2012. The AmeriKat will be back to report on any further updates.