Category : EPLA

On 19 February 2013, officials from 24 European Member States signed the Unified Patent Court agreement establishing a Unified Patent Court (“UPC Agreement).[1] When you read this, Bulgaria will probably have signed as well. Poland and Spain did not sign but may still accede to the Agreement at a later date.

Opening the signing ceremony, Mr Richard Bruton, Irish Minister for Jobs, Enterprise and Innovation, said: “The signing of the Unified Patent Court is a truly historic moment, as it will give enterprises greater access to patent protection at European level, and make enforcement of patents affordable. It is an important milestone in the continued development of the single market – a priority for the Irish Presidency”.[2] The Council’s press release noted that the next step is the ratification by the national parliaments and that “[a]ll the necessary decisions (designation of committees, budget, appointment of judges and president, recruitment of staff, facilities, etc.) should be adopted in a timely manner so as to enable the first registration of a European patent title with unitary effect in spring 2014”.

Reading the above information, I wondered whether the signing the UPC Agreement is indeed such a “truly historic moment” and “milestone”. Can we really expect the first patent case before the UPC in the spring of 2014?

Now that the Agreement has been signed, the ratification process by national parliaments can start as the Council also mentioned in its press release. The UPC will not enter into force until at least 13 Member States, including the three Member States with the highest number of European patents (Germany, France and the United Kingdom) have ratified the Agreement.[3] Ratification is not an easy process and history teaches us that in Europe nothing is certain, especially with the prospect of a British referendum on Europe.[4] It remains to be seen whether the British will be prepared to surrender yet more powers − more particularly judicial powers − to a new European body.[5] Another point to consider is that the UPC Agreement will not enter into force until the Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[6] has been amended to reflect the UPC Agreement. The Regulation itself was recently amended as well.[7] And once the UPC Agreement has entered into force, there will be the transitional provisions to deal with.[8] During the seven-year (!) transitional period following the Agreement’s entry into force parties may still initiate proceedings concerning European patents before the competent national courts. The UPC Agreement also provides an opt-out procedure: holders of or applicants for European patents may opt out of the unified litigation system until one month before the end of the transitional period so that the patent in question does not fall within the UPC’s jurisdiction. In that case, the enforcement and validity of patents will remain the exclusive jurisdiction of national courts.

In conclusion, the signing of the UPC Agreement is a major and necessary step towards a unified patent court, however, we still have a long way to go. In the present economic conditions with consumer confidence declining even further, a success story for Europe is more than welcome. That may explain the euphoria surrounding the signing of the Agreement. It will, however, take quite a long time before the first patent case will be brought before the UPC.

I consider it rather unlikely that this will be already in 2014.

András Kupecz, Simmons & Simmons Amsterdam

[1]       See the press release . The full text of the UPC Agreement can be found here and the text of the two council regulations establishing enhanced cooperation for unitary patent protection and its translation arrangements were published in the Official Journal of the European Union L361 of 31 December 2012.

[2]       Quote from the Council’s press release.

[3]       Article 89 UPC Agreement.

[4]       The 1975 Community Patent Convention never entered into force as it was not ratified by enough countries.

[5]       See Brian Cordery’s contribution on the Kluwer Patent Blog  

[7]       See the column ‘Rechtshandhaving, procesrecht en IPR’ in this edition. See also “Unified Patent Court, some Thoughts on Territorial Aspects“.

[8]       Article 83 UPC Agreement. Subsection 1 provides for the seven-year transitional period and subsection 3 lays down the opt-out procedure.

Author: 5 years ago

The European Patent Lawyers Association (EPLAW), comprising lawyers with many years of experience in European patent litigation, closely follows the preparatory work for and the legal discussions around the creation of a European patent court system. With the EPO Academy EPLAW organizes since 2005 the Venice Judges Forum, and several of it’s board members have participated in shaping the texts of the relevant international documents.  There has been considerable progress creating a Unitary Patent, as is evidenced by the Proposal for a Regulation in the area of the creation of a Unitary Patent (Council doc 11328/11, or also called the ‘Proposed Regulation’). The success of the Unitary Patent will be dependent on a litigation system which is satisfactory for the users. A draft agreement for such a system submitted to the CJEU for an advisory opinion, met with the Luxembourg Court’s disapproval in March of this year.

The EU Presidency on 2 September 2011 presented a modified text of a Draft Agreement for a Unified Patent Court to fulfil this need for a satisfactory litigation system (Council doc 13751/11, hereafter the ‘Draft Agreement’). EPLAW is of the opinion that this Draft Agreement has serious shortcomings and that – without amendment – it will fail to meet the promises made by the Commission and the Council over the years and will have a negative, rather than a positive economic impact for the users, particularly for SMEs.

Jochen Pagenberg, on behalf of EPLAW, of which organization he is a President, summarizes the current status of the Unitary Patent:

I. Shortcomings and suggested modifications

a) Inexperienced local divisions reduce quality and efficiency

Since the EU is no longer an economic stakeholder the incentive to create regional rather than local divisions has been given up. The result is likely to be the setting up of local divisions in most EU countries creating a complex, administratively burdensome, and rather diverse court structure with doubtlessly considerable differences in quality and experience of judges. The “expeditious and high quality decisions” required by the Draft Agreement (preamble par. 6) will fail to be reached if member states without sufficient patent litigation experience create local divisions instead of sharing a regional division. A satisfactory Draft Agreement must contain incentives for creating regional divisions.

b) Court fees must be clarified

There is no proposal as to how court fees and other litigation costs will be assessed and imposed, and it is also open for debate what the financial implications will be for the participating member states. It seems that savings by the new system are anticipated based on an incorrect assumption of the number of parallel litigation cases. Cost is particularly relevant for SMEs who normally do not litigate in more than one country, and who are very cost sensitive. SMEs presently represent the large majority of plaintiffs and defendants and would therefore suffer most and save little or nothing in case of any increase of court fees or other litigation costs.

Industry must be informed of the funding proposals and in particular the assessment of court fees before the Proposed Regulation is made available for enactment and the Draft Agreement for ratification. Users must be able to ascertain whether the new system will be sustainably financed at a level which guarantees speed, quality, and acceptable cost. It would be very unwise to decide such vital questions after execution of the relevant legal instruments.

c) Appointment of judges with proven experience

It is difficult to understand how under the Draft Agreement procedure for the appointment of judges the Advisory Committee can make proposals for candidates with “proven experience in the field of patent litigation” (see Art. 10) in those countries where there has been little or no patent litigation so far. The final word on appointments will be with the Administrative Committee (with “common accord“) while the Draft provides no possibility for interested parties or the Commission to challenge an appointment.

With respect to technical judges the question remains unresolved whether judges from the EPO Boards of Appeal who would have the required patent experience and legal knowledge will qualify for the Unified Court. Other technical judges except perhaps those of the German Federal Patent Court will be difficult to find.

d) There should be an option for parallel national litigation of EP patents

Under the Draft Agreement the Unified Court would not only have exclusive jurisdiction over Unitary Patents but also over existing and future European (“bundle”) Patents (which are currently litigated in the national courts). The Unified Patent Court will replace all national courts (retrospectively for existing patents) after a relatively short transitional period of five years. After that, users will have no choice1 but to use the Unified Patent Court regardless of whether it is functioning properly and how expensive it will be; indeed, regardless of whether users can even afford going to (or having to defend in) this court.

Upon introduction of the system it will also be possible for owners of existing European patents and pending applications for a period of five years to opt-out of the Unified Patent Court system as far as the relevant patents and applications are concerned.

During the transitional period users will retain the right to enforce European Patents nationally.  For SMEs in particular this will be important as most will only be interested in enforcing such patents in one territory.  Consideration should be given for extending the transitional period in respect of this one–territory enforcement right until the Unified Court is established as a cost efficient alternative for such actions. This parallel right may be achieved in the short/medium term by a more flexible transitional period (see below).

e) There should be a longer transitional period and more opt-out/opt-in flexibility

In view of these and other open questions EPLAW strongly believes that a transitional period should end only when the new court system has established an acceptable track record. This would require a sufficient number of decided cases in both instances covering a sufficient number of legal questions. Experience with the start of operation of the EPO in 1978 shows that it required ten years before the first cases reached the highest national instances. Given the increased risk of prejudicial questions being put to the EUCJ under the proposed system (see below) this means that the transitional period – as well as the opt-out period – must be extended to at least 15 years in order to give users a serious chance to evaluate whether the Unitary Patent and the Unified Court system are functioning to their satisfaction.

Allowing those who opted out a permanent right to opt back-in (from national to Unified Court) would considerably enlarge the number of possible plaintiffs, since it would include all EP patents in force and filed over the past 20 years.

f) There should be no EU rules of patent infringement

The most serious drafting error constitutes the inclusion of the Articles 6 to 8 into the Proposed Regulation. Rules with identical wording can be found as Articles 14f, 14g and 14h of the Draft Agreement. These articles (on ‘direct infringement’, on ‘indirect infringement’, and on ‘limitations’) set out the substantive law on patent infringement, based upon the corresponding provisions of the Community Patent Convention. The inclusion of these substantive rules into the Proposed Regulation will make them a matter of Union law with the result that an unpredictable number of referrals to the CJEU must be expected in an area which often is the core of a patent case2.

How will the CJEU be able to deal with these questions which according to Art. 10 of the Draft Agreement not only require the “highest standards of competence and proven experience in the field of patent litigation“but also an understanding of often highly technical facts?

EPLAW strongly recommends the exclusion of rules of substantive patent law from Union law, i.e. to delete the Articles 6 to 8 from Chapter II of the Draft Regulation and to add “European patents with unitary effect” in the Articles 14f to 14h of the Draft Agreement.

g)           Rules of procedure

The Draft Agreement currently proposes that the Rules of Procedure of the Unified Court will be adopted after the Draft Agreement comes into effect.  The Rules of Procedure will be critical to the achievement of the goals of the Unified Court and EPLAW believes that there must be sufficient clarity about the contents of these Rules before the Draft Agreement is made available for signature.

h)           Missing provisions

The Draft Agreement will apply to SPCs, but contains no provisions relating to SPCs. There are no provisions on legal privilege either.  These are important omissions.

i) Termination provisions required

There is no termination provision to rely on in the event the system would fail for any reason. This is a problem as the powers of the national patent courts have been surrendered by granting exclusive jurisdiction to the Unified Patent Court also regarding EP bundle patents indefinitely. The Agreement will be a stand-alone international treaty and, as such, the status of a contracting party to the Agreement is distinct from membership of the EU.  Further, there is no right for a contracting Member State to withdraw from the Agreement if it believes the Unified Court is not functioning satisfactorily.

II . Conclusions

EPLAW believes that creating a Unitary Patent before having created and finally adopted a satisfactory litigation system is an unwise approach.

Without revision the current Draft Agreement on a Unified Patent Court will fail to meet the promise of being accessible and affordable, and of creating laws and procedures which are easy to use. As it presently stands users will moreover face the situation that, because of the likely involvement of the CJEU and the likely creation of local divisions in all 25 member states, the promise of the “highest standards of competence and proven experience” with respect to patent litigation among the judges will be impossible to fulfil.

EPLAW regards the revisions proposed above as the bare minimum required in order to reach the added value yardstick which industry has been requesting and has been promised as a condition for acceptance and use. Without these revisions it is very likely that the combination of the Unitary Patent Regulation and the Unified Patent Court Agreement will increase cost, increase legal uncertainty, and defeat its goal of ensuring expeditious and high quality decisions.

EPLAW members have become concerned that speed is put above careful analysis and reflection and that an easy compromise has become the only goal. Inventors and patent-minded companies, however, – be they patentees or alleged infringers – deserve the best of all systems. They are the promoters of technical progress and economic growth. They must be convinced that everything is being done to eliminate mistakes and strive for a workable solution. We cannot afford another failure.

Jochen Pagenberg, President EPLAW (part of the above is the text of an EPLAW Resolution on the Draft Agreement 13751/11 of September 2, 2011)

2 See on this topic the Opinion of Professor Krasser

Author: 7 years ago

It seems like the proper moment to provide an update on where we are with the creation of a single EU patent and how this EU patent, once created, will be dealt with in Court if it comes to infringement or validity challenges. Some recent development indicate that momentum is gaining for the adoption of a unified EU or Unitary Patent and potentially also on litigating EU patents in Europe on the basis of unified rules.

Recent Encouraging Developments

Firstly, last week, the EU’s MEPs agreed on creating a single EU Patent via the so called “enhanced co-operation” procedure, which allows a group of EU countries to go ahead with co-operative ventures even if all 27 countries do not want to join in[1].

Secondly, on March 8, the European Court of Justice will render its judgment on an important hurdle, surrounding the creation of a single EU patent (see below).

A Bit of History and Issues at Hand

For more than 50 years EU is discussing how to get a more rational patent litigation system. Due to political differences there still is no single, unified patent litigation system (UPLS) that can deal with validity and infringement of European patents in one single action covering the European Union. Not only don’t we have a single system yet, we have no unified single European Patent Court either. Instead, the present enforcement system is divided up along national lines, resulting in costly, inefficient, parallel litigation across Europe involving “the same” European patent [2].  After grant – for which a unified system is provided by the European Patent Convention since 1977, the patent holder is left with a “bundle” of national patents. Litigation has to be instigated in every national European jurisdiction separately – especially since the European Court of Justice put a hold to cross-border litigation which started in Dutch Courts but received only support from Germany and Switzerland.

Costs are still a major issues. Under the current system of the EPC (European Patent Convention) the high costs of obtaining an EU-wide patent protection for a single invention is generally seen as the biggest hurdle to go “European”, especially for SMEs. Though the patent application procedure has been unified by the EPC. National patent interests dominate the European arena, causing a multiplication of patent fees (about 20.000 EUR per year for an EU-wide protection, US about 1.800 EUR per year) as well a huge multi-language translation costs.

So where are we now?

First we had EPLA, the “European Patent Litigation Agreement”, which was a creditable initiative by patent practitioners and judges, but was basically killed by politicians. Subsequently the Council Working Party on Intellectual Property (Patents) under various EU Presidencies has, in close co-operation with the European Commission, been trying to reach a Unified Patent Litigation System (UPLS) for patents in Europe.

The most recent documents relating to the EU patent – or “Unitary Patent” – are:

(a) a draft Agreement on the European and Community Patents Court (ECPC, now called the “European and European Union Patents Court” or EEUPC)

(b) a draft Statute of the Court

(c) (non-official) working paper from the Advisory Work group on the draft Rules of Procedure for a Unified Patent Litigation System (October 16, 2010)

(d) a EU Council document authorizing enhanced cooperation creating a Unitary Patent

(e) a EU Council document on translation arrangements for the European Patent

The discussion based on these drafts is combined with work on the development of a European Community Patent (Compat), now called the European Union patent[3]. Amongst others a Group of Experts, appointed by the Commission, has been trying to be of some assistance during this process[4].

The Draft Agreement seeks to import the positive features of the EPLA proposals but within the European Union legal order, although the system is designed to be open for non EU-EPC Contracting States, such as Switzerland, Norway and Turkey. The envisaged Court system is designed to combine the best of both legal traditions across Europe, i.e. the Continental (in essence Roman (civil)) law system and the English (common law) tradition, both in terms of substantive as well as procedural law. Although this in itself constitutes a major effort, a consensus seems to be slowly growing among judges and attorneys (and maybe professionals at large) on a European level that this is feasible. It is the politicians that still have to join the bandwagon with real commitment.

The EEUPC [5]

The EEUPC consists of a Court of First Instance (CFI), with a central division, regional and local divisions, panels of 3 or 4 judges with a maximum of 1 technical judge, always in multinational composition, and a (centralized) Court of Appeal (CoA, also multinationally comprised, but with 5 judges and at most 2 technical judges) and a Registry. There is a pool of judges and a set-up for training facilities for them. As an option infringement and revocation proceedings can be bifurcated (German system), but also tried in the same proceeding, as is presently done in the majority of other jurisdictions outside Germany. The draft provides for a transitional period of 7 years during which the EEUPC will function alongside the national patent courts and in addition there is an opt-out possibility for pending European Patents or applications[6]. On average proceedings for the CFI should last no longer than a year and the same is envisaged for appeal proceedings. CFI proceedings consist of a written phase, an interim phase and an oral hearing (typically not lasting longer than one day) and can be characterized as a moderately frontloaded system. The remedies required by the Enforcement Directive are incorporated under the UPLS.

ECJ’s role in creating a Unified EU Patent

In June 2009, the EU Council decided to seek the opinion of the European Court of Justice, in accordance with Article 300(6) of the EC Treaty, on the question:

“Is the envisaged Agreement creating a Unified Patent Litigation System (the name changed into “European and Community Patents Court” – ECPC – and was recently renamed again in the “European and European Union Patents Court”, or EEUPC) compatible with the provisions of the Treaty establishing the European Community?”

The Joint Opinion of the Advocates General of the European Court of Justice (ECJ) of July 2, 2010 was “leaked”. The full text with informal English translation can be found here.  The ECJ is expected to render its judgment on March 8. If the ECJ follows the opinion of the Joint Advocates-General then we may expect four areas of problems to be resolved (see par. 123 Joint Opinion, under “Conclusions”):

1.       The present draft proposal for the EEUPC in Article 14 bis, par. 1 b) is lacking sufficient remedies for a possible infringement of Union law by the Patent Court and adequate protection of the autonomy of the Union’s legal system.

2.       The remedies available in the event of the PC’s infringement of Union law and in the event of non-observance of its obligation to effect a preliminary reference pursuant to article 48 paragraph 1 of the draft agreement are insufficient (see points 104 to 115 of the Joint Opinion).

3.       The linguistic system faced by the central division of the PC may affect the rights of defence (see points 121 and 122 of Joint Opinion).

4.       The draft agreement, read in the light of all the measures contemplated concerning patents, does not satisfy the requirement of ensuring effective judicial control and a correct and uniform application of Union law in administrative proceedings concerning the granting of Community patents (see points 68 to 75 of the Joint Opinion).

The Issues mentioned under 2 and 4 are generally considered the most serious ones. Common perception seems to indicate that all points can be addressed and should be no show-stoppers. In short:

ad 1. the idea would be to amend art. 14 bis,

ad 2. the idea would be to allow Advocates-General to instigate so called “cassation in the interest of the law” (this would be a sort of appeal that would not affect the rights of the original parties to the suit, but is only in the interest of the development of the law), or, alternatively, provide for a right to claim for damages against Member States who take part in the new system

ad 3.  the idea would be to provide translation facilities upon request (see also the practice by Dutch courts in patent litigation cases where real time translation services are provided for by professional translators in translation cabins in the court room)

ad 4.  Lack of Court control in EPO administrative granting proceedings (only relevant for future unitary EU Patents for EP’s it will be a task for the EEUPC  and only relevant for refusing to grant EU unitary patents). This issues seems to be ultra questionem – no business of the EU legal order

The good news is what the Joint AG’s said on the legality of the idea of a joint Patent Court  in general (see Joint Opinion under 58 and 60), namely that EU law allows creating a European Patent Court outside the judicial EU system and Member States are free to create a “common patent court”. This makes a revival of EPLA legally possible in theory. EPLA was and is an optional UPLS-Protocol to the EPC 2000, for a true “coalition of the willing”, which got nearly unanimous support from Patent Judges gathered in Venice 4 years ago. Lord Hoffman, Pagenberg and Robert van Peursem supported this again in the last Venice Forum, however political feasibility might be low in near future.

After March 8, no doubt we may expect a new impetus for the Unitary Patent, or, EU patent (although officially EU Patent implies that all EU countries will follow, but as we saw above Spain and Italy are no part of the “enhanced cooperation”-  coalition of the willing and therefore EU patent would be somewhat misleading. We keep on calling it that way, anyhow.

Follow us further on March 8 when the ECJ speaks out. Meanwhile we add a new section (on the right of this blog) where we permanently make the most recent documents available relating to the EU or Unitary Patent. For further reading see our blog: “New Impetus on EU Patent, Unified EU Patent Court and UPLS” and Jochen Pagenberg, “EU Patent and the EEUPC Agreement: What can still happen?”

[1] Together with the request for enhanced cooperation, the EU Commission changed the name of the “smaller” patent from “EU Patent” to “Unitary Patent”.

[2] see for a comprehensive overview on where we are with the single EU Patent and EU patent litigation, Robert van Peursem, The future UPLS for patent litigation in Europe(2011), published in “A century of patents in the Netherlands” (Anniversary publication NL Agency – NL Patent Office, July 2010

[3] The latest draft Regulation, dated 27 November 2009, was politically approved during the Internal Market Council of 4 December 2009 under the Swedish Presidency. In the least pessimistic view this could enter into force around 2020 at the earliest.

[4] This Expert Group consists of representatives from industry (Business Europe, EICTA, EFPTA) and 5 judges and 5 attorneys from 7 Member States, mainly board members from IPJA (Intellectual Property Judges Association) and EPLAW (European Patent Lawyers Association): Judges Sir Robin Jacob (CoA London), Alice Pézard (Cour de Cass, Paris), Dr. Klaus Grabinski (BGH, Karlsruhe), Eurico Reis (CoA Lisbon) and Robert van Peursem (District Court The Hague), attorneys Kevin Mooney (London), Pierre Véron (Lyon/Paris), Dr. Jochen Pagenberg (Munich/Paris), Jorge Grau (Barcelona) and Dr. József Tálas (Budapest).

[5] with consent taken from the article by Robert van Peursem, “The future UPLS for patent litigation in Europe” (2011), see note (2).

[6] Dr. Jochen Pagenberg has suggested to introduce a permanent opt-out possibility not only during the transitional period, but permanently, for cases without cross-border aspects, in less far reaching form limited to a first action of a patentee or alleged infringer, so that any further action would have to go to the EEUPC. In a survey conducted among European patent judges at the 4th Venice Judges’ Forum in November 2008, 2/3 of the respondents were in favor of this idea without restrictions, that presently is not in the Draft Agreement. The survey can be consulted at the EPLAW website,, together with Dr. Pagenberg’s paper for the Strasbourg Colloquium of October 2008 where he first ventured this idea, as well as an outline of the results of the survey.

Author: 7 years ago

The creation of a new European Patent System meets some firm opposition and obstacles from various sides. Debates have been going on for decades now whether we should have a EU – or in older terms “Community” – Patent.  Presently, the only “European” patents[1] that exists next to “national” patents are those granted by the European Patent Office (EPO) in Munich according to the Convention on the Grant of European Patents of  5 October 1973, commonly known as the European Patent Convention (EPC).  After grant, this European patent (“EP”) becomes a number (“bundle”) of national patents, so receiving (only) the effect those national patent rights receive in the respective EU countries. Although validity and infringement are decided along unified rules (in the EPC) national courts can and often will decide differently on those issues therefore creating uncertainty and division into what was meant to be a European patent.

The idea was to create a “unitary” EU or Community Patent[2].  The term “unitary patent”, means a single patent granted with equal effect throughout each and every EU member state and maintained as a single right. In general, such a patent would be litigated as a single right across the EU, and infringement and validity decisions would apply equally to all member states.

The road to a truly unitary right is littered with good intentions, after a failed Community Patent Convention (CVC) in the 1970’s in early 2000 a renewed effort was undertaken, by introducing the Community Patent Regulation, followed by initiatives by private practice and the judiciary, with the so called the London Agreement and a European Patent Litigation Agreement were the results. Typical tumbling stones were disagreements on language, translations and more substantive reasons like invalidity and infringement criteria that would need to be agreed by all major patent jurisdictions in Europe. The interests of national Patent Offices (making a lot of money by conducting all kind of lucrative tasks like prior art searches, etc.) made it also difficult to restructure the patent system.

In 2009 a legal hurdle came up, questioning whether the new EU Patent system is in line with EU Law. On May 18, 2010, the European Court of Justice held its hearing in the proceeding for an opinion under art. 300 (6) EC (now art. 218(11) TFEU[3] concerning the compatibility of the Draft Agreement for a European and Community Patents Court. This request for an Opinion was filed on July 9, 2009 by the Council of the European Union.

Jochen Pagenberg, present at the ECJ hearing, will publish his observations in an article to be published shortly. Here is a preview of his conclusion.

[1] The different routes you can take to patent an invention are the European, the international and the national route. The EPO handles patent applications for the contracting states to the European Patent Convention (EPC) and certain extension states, and also international applications under the Patent Cooperation Treaty (PCT).

[2] With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the “EU patent” and the “European and Community Patent’s Court (ECPC)” has been renamed the “European and European Union Patent’s Court (EEUPC)”.

[3] Treaty on the Functioning of the European Union

Author: 8 years ago

With just a little more than a month left of the Swedish EU presidency, it is time for some reflection. What has been achieved in the case of the intellectual property system during the last 6 months? The Swedish government said it would drive progress towards the much debated Community Patent and the Unified Patent Litigation System (UPLS). So, what happened? Despite years of discussions on the topic of harmonizing the prosecution and enforcement procedures of European inventions, we are still a long way from seeing white smoke billowing from the chimney. Alleged claims of cost savings of up to €289 million with an UPLS and increased patent power Read more

Author: 8 years ago

Recently the European Commission requested the Council to authorize the start of negotiations for the conclusion of an Agreement Creating a Unified Patent Litigation System. Old wine in a new bottle? EPLA (European Patent Law Agreement) intended to address the shortcomings of the present system, where a patent infringement and invalidity claim must be filed in individual European countries.  EPLA originated in the EPO and a few active members of the EPC, patent litigators and judges. Now the EU Commission produces its “Recommendation”, of course to underline this is a Commission initiative rather than an EPO one, the name is now different. Read more

Author: 9 years ago

Auctions to sell assets have been known for long. Goethe proposed the publisher Vieweg in 1797 to sell his manuscript of his poem Hermann and Dorothea via an auction (later to become known as “a second-price auction”). In IP no doubt auctions have become a household practice thanks to Ocean Tomo‘s regular auctions of patents. They at least deserve praise for being the facilitator of “EBay” type of auctions of IP assets saleable like any other asset. And the public acknowledgement that comes with it that IP is like any other asset, it can be valued, it can be sold and bought online, by auction, by different bidding processes. Read more

Author: 9 years ago

EPLA proponent Jochen Pagenberg delivers fierce criticism on lack of progress on EPLA. Will the European Patent Litigation Agreement have a chance in 2008? Read his critical review in “International Review of Intellectual Property and Competition Law (IIC) 2007, 7).He seems not particularly optimistic:

“Industry is certainly not willing to waste another year in fruitless discussions. If nothing happens, it will be better to drop EPLA and the Community patent for good – sooner rather than later. The Community patent will be even more difficult to adopt politically because the involvement of all Member States is indeed necessary. But the Community patent should be easier to discuss, when Member States have experience of how EPLA operates. Therefore, if EPLA is not achievable, it would be preferable to maintain the status quo and not even to start on an overhaul of the Community Patent Regulation. None of the Member States and nobody in the Commission will be willing and able to prepare any paper that could even come close to the detailed content of the EPLA draft. Therefore it must be feared that participants will grow tired of continuing discussions on one small item after another – and no end in sight.” 

Author: 10 years ago

The rumor goes that France is due to make a sea change shift towards supporting the EPLA, an initiative to harmonize the way patents are being litigated in Europe. The French Research Minister (heading the French Ministère de l’Enseignement supérieur et de la Recherche”) Valérie Pecresse, has sent a letter (or is about to do so) to her German counterpart, expressing the French support for EPLA. We have not been able to find any confirmation or hard evidence for this rumor from anyone yet, nor from the French delegates to the AIPPI ExCO meeting currently taking place in Singapore. They do agree though, that such a letter would implicate a sea change in the position of France, who has been the most vocal of antis against the EPLA proposal. One wonders whether the French Minister – in indeed she sent the letter, or is about to do so – could do this without the backing of Nicolas Sarkozy, the French President (not if you are fond of your job as a French Minister, we imagine).The support would not only be for EPLA, but also for the London Agreement. The London Agreement was concluded in London on 17 October 2000 with the aim of creating a cost attractive post-grant translation regime for European patents. It is the fruit of the work on reducing European patent costs, which was set in motion at the Intergovernmental Conference held in France in June 1999.EPLA has been on a bumpy road so far. McCreevy, the EU’s internal market commissioner, told the Financial Times in 2006 that “anything remotely concerning this patent area is fraught with minefields at every turn of the road”. He said the failure to secure backing from national governments made him “pessimistic” about the prospect of making progress on the issue. Should pessimism now turn euphoric? Not yet, I am afraid. Let us see what the position of France, the major non voter so far, is. Does Sarkozy now lets his influence count on this subject as well?Anyone in the position to (if necessary namelessly) confirm or deny this rumor? Please reply to this blog (below, push the envelope).other IPEG blogs on EPLA: see and the column on the right of this blog, called “EPLA – everything you always wanted to know but was unable to find

Author: 11 years ago

Today starts, in Munich, a two day Symposium: “The Future of European Patent Jurisdiction” organised by the German Federal Patent Court, in consultation with the Federal Ministry of Justice, The meeting is expected to bring together 200-250 participants from all over Europe who are actively engaged with this issue in their work as judges and lawyers, as members of the business or scientific communities, or as decision-makers in EU Member State governments and the European Commission. Federal Minister of Justice Brigitte Zypries will attend the symposium and deliver the opening speech.If only Germany could be as effective in brokering a EU Treaty consensus as they can be on reaching a common view on EPLA, wouldn’t that be what the European patent community is waiting for too long?We hope to be able to get you news from the conference later today.

Author: 11 years ago