EPLA ‘s successor UPLS, what’s in a name?

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. What about the contents?

Like EPLA, UPLS proposed a unified court structure with the same features as EPLA:

  • jurisdiction over European and future Community Patents for infringement and revocation actions
  • a single judiciary following uniform procedures and comprised of highly specialized and trained judges
  • decisions that will have effect throughout the territories where the patent is in force

Many issues have been discussed at the last meeting of the Expert Committee of the Commission. Interested what issues are under discussion? Click here.

Want to hear about the chances of the project, well it’s no secret that up to 5 countries, led by Spain, are expected not to approve the present project in the Council. Spain has clearly announced it will vote against the current plan, the Scandinavian groups have expressed their unanimous vote recently in a AIPPI survey which Dr. Jochen Pagenberg initiated.

Four European groups of AIPPI, Denmark, Sweden, Finland and Norway expressed their support for a European patent litigation and court system but in the light of opposition by a number of countries in Europe will not support the current proposal either.

Taken the number of countries not supporting the UPLS in its current form, the Nordic countries wish to limit the geographic scope of the system to those countries which are interested or even anxious to have a common litigation agreement for European patents.

The result of Jochen Pagenberg’s AIPPI survey is not (yet) public, but we know of a similar survey he conducted during theVenice Judges Forum” November 2008. The judges supported a proposal from the Strasbourg conference made in 2008, which is also fully supported not only by the Nordic countries, but also by The Netherlands. Germany is not yet prepared to support.

So, does this sound like progress? Not to us, but as long as experts and the Commission are talking their might be a chance we will see the end of the EU Patent Ligation tunnel.

Things are not particularly helped by the fact that some industries, most notably the pharmaceutical industry, has not been a fervent supporter of the EPLA, nor of its successor UPLS. Why? Not surprisingly, the idea that your expensive and hard fought patent can be invalidated by a single strike by a non experienced or ill-advised court – Greece is the example of choice – does not sound very attractive, does it? But then again, Pharma also opposed the EPO when it was first proposed. Does it mean they will eventually support the UPLS proposal?

We doubt it.

For more reading on EPLA see Dr. Jochen Pagenberg, “The European Union Patent Court – A pleading for optional national litigation (Colloque Strasbourg October 16-17, 2008) .

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