Is there Life after EU Patent Court Death?

The recent opinion by the European Court of Justice that the proposed EU Patent Court contravenes EU law, has caused many to believe that the EU patent court is at a dead end and that it is difficult – if not impossible – to revive. Jochen Pagenberg, one of the fierce proponents of the EU Patent Court and always prepared to find new solutions for old problems, is pessimistic.  In his article Little Hope for an EU Patent Court after the CJ Opinion he wonders whether amendments could render the Proposal for an Agreement on a combined court system for EPC and EU patents compatible. He is pessimistic:

He is very sceptical whether the “repair solution” – including into art. 48 of the Draft a direct control of patent litigation by the ECJ and the possibility to raise damage claims if the referral rules have been violated by the court – will work.

The “CTM or Benelux solution” – create a court system as it has been adopted for the Community Trademark litigation (CTM) or the Benelux (Belgium/Netherlands/Luxembourg) Courts instead of a system of international courts and divisions – would most likely not work either, as this proposal would again restrict the membership of the Agreement to EU member states, so countries which are now part of the EP system, like e.g. Switzerland, would be excluded, clearly an unattractive idea.

It seems that Pagenberg, like others can only see a way out by reviving the EPLA idea:

One could use the basic structure of the EPLA text with the institutional and procedural improvements from the EEUPC draft, e.g. on composition of panels, optional bifurcation and perhaps some other concepts, and finally begin with a more realistic attempt for an international litigation system, instead of hurting oneself again and again when trying to crack the legal fortress of the EU Treaties. The Commission has promised repeatedly “it will be the last time”, and after the events of the last four months most observers would rather prefer a break – or a new approach into a different direction with a different project.”

P.S. Pagenberg’s article cited in this blog, “Little Hope for an EU Patent Court after the CJ Opinion” first appeared on EPLAW Patent Blog

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