The struggle to reach a single European Patent Court dominates “patent politics” in 2010 (see our June blog). In September, some 120 patent judges from European Patent Convention states as well as guests from the US and Japan met in Lisbon discussing recent developments in European patent law. Did they brought what is now called the European and EU Patent Court (EEUPC) closer to becoming reality? Apart from the usual niceties and exchanges of good intentions, basically no progress has been made. All judges and attorneys and guests present at the conference were fully aware of the dark cloud hanging above the EU Patent Court and its foundations after the negative Opinion 1/09 of the ECJ Advocates-General on the question before the Court whether the Draft Agreement (to establish the EU patent court was compatible with the EU treaties).
Most of participants in the conference took the view that the criticism expressed by the Advocates-General in their unofficially published conclusions on the EEUPC project should not be seen too negatively. The Advocates-General offered solutions where they saw incompatibilities between the current draft of the agreement and EU law. In particular, they did not deny the competence of the EU to conclude such an agreement. However, the final opinion by the Court of Justice of the EU, which is not bound by the conclusions of the Advocates-General, will be decisive. Many patent judges expressed their high expectations and hopes for quick progress on a European patent court. Whether that optimism is justified remains to be seen. Judgment of the ECJ is expected in December.
On September 15, a Committee of the AIPPI, the international IP organization, also gave its report on the EU Patent Court, the Rules of Procedure, as well as the Regulation for the Community Patent, now named “EU Patent”. All three documents are still not in final form and partly disputed.
An interesting observation from the AIPPI report is that, as a result of the Advocates-General’s Opinion (par. 58, 60,63), the EPLA may be in for a “revival”, [quote]:
“Apart from the statement of incompatibility for which a lack of ECJ competence in the future patent court system has been given as a main argument, the most interesting recitals are 58, 60 and 63 of the Opinion which should be reproduced here:
58. With regard to the legality of creating the PC as an international court, situated outside the judicial system of the European Union and enjoying sole competence for certain types of appeal, one should first recall that Union law is not in principle opposed to an international agreement providing for its own judicial system…
60. We should first point out that it is not the competences of the future PC concerning the European patent that pose a problem here: in fact, judicial competences concerning the European patent have always been exercised by the national courts; the Member States are therefore free to assign them to an international body, created by mutual consent and having the vocation of being “their” common court. However, the question of knowing whether and to what extent that same international body can also be assigned certain judicial competences concerning the future Community patent is more delicate
63. (…) Disputes between individuals do not fall within the competence of the European Court of Justice. It is the national courts that are always called to hear disputes between individuals, whether or not they raise questions of Union law, even when the validity, interpretation or infringement of a European intellectual property title is at stake37. This definition of judicial competences reflects the principle of assignment38, according to which any competence not assigned to the Union in the treaties belongs to the Member States”
This reads like an official rehabilitation of the members of the EPLA Working Party who during the discussions on EPLA before 2006 had been accused by the representatives of the Commission at that time of having no right and competence to negotiate without the authorization of the EC alleging that only the European Community had competence for creating an international court, even if only a few members of the Community were willing to join. Now the AGs take exactly the opposite view, and it will be interesting to see where the ECJ stands. [unquote]
The Chairman of the AIPPI (dr. Jochen Pagenberg) committee ends his report as follows:
The question for Committee Q 165 will now be – assuming the ECJ argues along the same lines as the AGs – whether the work for EPLA should be resumed while leaving aside the EEUPC for a while, since EPLA might be easier to be accomplished now. Or whether one should at the same time explore parallel avenues around the political stumble stones of the EEUPC, in order not to lose time for the project as a whole. Historically the second alternative has proven very successful when the Strasbourg and the Munich Patent Conventions were discussed in the 1960ies by different teams who succeeded to agree on identical texts of substantive laws which are still valid today.”
 The opinion adds here a footnote which reads: See Opinion 1/91 of 14 December 1991 (ECR. p. I-6079): in point 40 of the aforesaid opinion, the Court confirms that the conclusion of an international agreement providing for a judicial system such as that of the EEA Court is “in principle, compatible with Community law”; in point 70 of that same opinion, the Court also states that “an international agreement which provides for a judicial system having a competent court for interpreting its provisions is not, in principle, incompatible with Community law”.