| European patent law |
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| European Patent Organisation |
| European Union |
| Biotech directive |
| Centralization and harmonization |
| EU patent Brussels Regime European Patent Litigation
London AgreementAgreement (EPLA) |
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".[1]
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Under Article 64(3) EPC, any infringement of a European patent is dealt with under national law. Additionally, once the 9 month opposition period under Article 99 EPC 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.[2]
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.[3]
In 1999, a Working Party on Litigation was set up by member states of the European Patent Organisation 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 [4] in conjunction with the community patent.
In 2006, the European Commission launched a public consultation on future patent policy in Europe,[5] 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.[6]
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"[7] 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.[8]
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".[9]
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.[10]
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. [11]
The 2003 draft agreement provides the creation of a "European Patent Judiciary (EPJ)", comprising:
The European Patent Judiciary (EPJ) would make current national patent courts obsolete. However, the EPJ may install regional chambers.
It is not clear yet whether the countries which are members of the European Union 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[12]).
France may also have constitutional problems to sign and ratify such a far-reaching agreement.[13]
The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law.[14]