European Patent Litigation Agreement

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European patent law
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Centralization and harmonization
Community patent Brussels Regime European Patent Litigation Agreement (EPLA) London Agreement
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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]

1 Background
2 History
3 Content
4 Competence problems
5 Arguments of proponents
6 Arguments of critics
7 Trivia
8 References
9 See also
10 External links

[edit] Background

Currently, once granted, a European patent is enforceable on a country-by-country basis.^[2] In addition, once the 9-month opposition period is terminated, third parties wanting to invalidate a European patent must institute revocation proceedings in each country where the patent is in force.

[edit] History

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.

In 2006, the European Commission launched a public consultation on future patent policy in Europe,^[3] 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.^[4]

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.^[5]

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". ^[6]

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. ^[7]

[edit] Content

The 2003 draft agreement provides the creation of a "European Patent Judiciary (EPJ)", comprising:

a "European Patent Court" competent to decide on infringement relating to patents of EPO member states and including a "European Patent Court of Appeal"; and
an "Administrative Committee".

The European Patent Judiciary (EPJ) would make current national patent courts obsolete. However, the EPJ may install regional chambers.

[edit] Competence problems

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^[8]).

France may also have constitutional problems to sign and ratify such a far-reaching agreement.^[9] It is supported by the "Latin group" of member states.

[edit] Arguments of proponents

Proponents claim the present enforcement situation leads to high litigation and revocation costs for patent holders and third parties, to legal uncertainty (the same European patent may be revoked in United Kingdom while upheld in Germany because of the territorial principle after grant), cross-border injunctions and forum shopping (selecting the most favorable national court to institute litigation). The classical case put forward by proponents is Epilady, a patent on a shaving device which was received different interpretations in two member states. Proponents claim language costs reduce the incentives to apply for a European patent and the situation is a burden on the competitiveness of the European economy, compared to the situation in the United States or Japan.

While a European single market is in place, there are still no centrally-enforceable patents within the European Union. Only national patent systems and a European patent system providing nationally-enforceable European patents, instituted by the European Patent Convention, exist. The EPLA is said to be an alternative to the stalled community patent proposal as it aims to address problems the Community Patent solves, namely different interpretations of national law. As the Community Patent is stalled the EPLA was put into discussions again as an alternative to make progress. However, an adoption of the London Protocol which is a prerequisite of EPLA would also solve the Community Patent language requirements. The London Protocol will be very important to reduce the translation requirement costs, and further outsourcing of companies patent services to anglophone nations abroad. Many officials think that the current patent system is reaching its administrative capacity and strongly requires the London Agreement. As language is a very sensitive issue EPLA is often also a Code for the London Protocol, as there are no notable language regime problems of a European Patent Judiciary (300 cases per year) that cannot be solved by money.

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"^[10] while closing the abovementioned public hearing on future patent policy in Europe. In April 2007 some different routes became apparent: The Latin group wants an EU-EPLA and strongly opposes the London Agreement. The German Group wants EPO-EPLA and the London Agreement and hopes the French elections would let France refrain from its resistance to the London Protocol. Erik Nooteboom of DG Market put forward a compromise between both positions.

[edit] Arguments of critics

A main point of concern over EPLA is of institutional nature. EPLA fits in the EPO framework and will make a migration of the EPO into the European Community and progress on a Community Patent even more difficult. The EPLA would make the EPO-System fully independend from political control. Part of these concerns are the governance usances of the current EPO leadership which for instance actively takes part in lobbying parlamentarians. The EPLA is advocated as an alternative EPO model to the Community Patent which gives the EU less say and preserves the institutional role of the EPO/EPC (no EU regulatory bodies/frameworks).

Critics of the EPO policy seek ways to change the pratice of the EPO, esp. in the field of computer-implemented inventions and business methods but observe lack of access to the EPO through national Parliaments. What they often criticise is a "patent sleaze", i.e. a community of patent politicians and officials who govern the European Patent Institutions and share certain common opinions about the patent system destinct from democratic majority will. Some advocats claim that the main driving force behind the EPLA was 'legalising' software patents, business method patents via case law, under the assumption that the new European Patent Judiciary would side with the current EPO interpretation of the European Patent Convention which is not followed by all national courts.^[11]^[12] They also argue that the proposed "European Patent Judiciary" would lack EPO-independent judges and sufficient democratic control;^[13] while drastically increasing the number of patent litigation cases and additionally their respective costs,^[14]^[15] none the least because of the need to generate revenue for self-financing.^[16]

The underlying fear is that the European Patent Judiciary would lead, as observed with the US CAFC court or the EPO Technical Board of Appeal, to an expansion of substantive patent law interpretations without political decisions ^[17] . Case Law interpretation would prejudice substantive patent law reform as observed in the debate on the patentability of computer-implemented inventions. However, expansions of patent law to new fields would normally require an economic rationale. Judges are not competent to decice on economic matters or take into account the full range of democratic questions over patent law.

The EPLA would possibly infringe the acquis communautaire as it is no EU regulation.^[18] For instance, Community patent critics and Spain put forward language reasons which caused the legislative project of the EU Community patent to stall (May 18, 2004). The EPLA in conjunction with the London Agreement would provide little advantage in matters of languages.^{[citation needed]}

The abovementioned consultation on future patent policy in Europe was criticised on several occasions of being partial to presumable EPLA proponents.^[19]

[edit] Trivia

The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law.^[20]