| location |
current draft |
criticism/counter-proposal |
| Preamble |
Sets out the endeavours of the Contracting States and the goals of the Agreement: |
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improve the enforcement of European patents, enhance legal certainty and promote the uniform application and interpretation of European patent law. |
provide uniform and rational processes for application and improvement of the rules for patent validation and enforcement in Europe, so as to ensure that the patent system can effectively serve its functions in a rapidly changing technological and economic environment. |
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Refers to the legal framework which surrounds the Agreement and from which many provisions are drawn, the EPC 2000, the TRIPs Agreement and Community law (in particular, the Agreement relating to Community patents of 1989, the Brussels and Lugano Conventions and Regulation 44/2001). |
EPC (either 1973 or 2000), not necessarily EPC 2000 |
| I |
GENERAL AND INSTITUTIONAL PROVISIONS |
| I.I/1-9 |
General provisions |
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Set up a new international organisation, the European Patent Judiciary (EPJ), to settle litigation concerning the infringement and validity of European patents effective in the Contracting States which commit themselves to this new integrated judicial system. List the organs of the EPJ: the European Patent Court and the Administrative Committee. Set up the Facultative Advisory Council (FAC). Lay down the autonomy, legal status, seat, privileges and immunities and liability of the EPJ, as well as the judicial independence of the European Patent Court. |
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| I.I/2 |
“Any person who has a good command of at least one of the official languages of the European Patent Office may be appointed as a judge of the European Patent Court, provided that he has sufficient experience of patent law and (a) has been or is a judge in one of the Contracting States to the European Patent Convention, (b) has been or is a member of a Board of appeal of the European Patent Office or a national patent office of one of the Contracting States to the European Patent Convention, or (c) has other equivalent experience enabling him to act as a judge of the European Patent Court.” |
The European Patent Court will decide civil cases, now decided by national courts. It does make sense to appoint judges from the member states. Members of a Board of appeal of the European Patent Office or a national patent office on the other hand come from the administration. The Boards of Appeal have never been independent. Administrative law is a different kind of law. Judges of the highest European civil patent court can also be members of a Board of appeal of the European Patent Office or a national patent office, which are internal and not independent. An unheard of mixture of executive and judiciary. This compares unfavourably to the Community patent related CPC, which would be a part of the ECJ. ECJ judges can not hold another office. |
| I.I/2 |
“The Community Patent Court shall consist of seven Judges, who shall be appointed for a period of six years. The membership shall be partially renewed every three years, replacing four and three members alternately. Retiring members shall be eligible for reappointment. The Judges shall be chosen from candidates presented by the Member States having an established high level of legal expertise in patent law. They shall be appointed by the Council on the basis of their expertise after consultation of a committee to be set up in accordance with Article 3.” |
Judges should be appointed for life. |
| I.I/4 |
“Judges shall be appointed by the Administrative Committee as legally or technically qualified judges for a term of six years, on a proposal from the Common Presidium. They may be re-appointed.” |
Re-appointable judges are not independent. Basically, the same people will control the European Patent Office, will appoint the Boards of Appeal members and the European Patent Court judges. An enormous concentration of power, while the governance model is a political vacuum. |
| I.I/6 |
“Apart from being members of other courts or Boards of appeal of the European Patent Office or national patent offices, judges of the European Patent Court shall not pursue any gainful occupation unless authorised by the Executive Committee. Nor shall they occupy any political or administrative office.” |
Members of the EPO’s Technical Boards should not be admitted, neither during nor after expiry of their term. |
| I.II/10-12 |
European Patent Court |
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Comprises the Court of First Instance, the Court of Appeal and the Registry. The Central Division of the Court of First Instance, the Court of Appeal and the Registry shall be set up at the seat of the EPJ. A number of Regional Divisions may be set up in the Contracting States by the Administrative Committee, and a sub-registry shall be set up at the location of any Regional Division. |
| I.III/13-19 |
Administrative Committee |
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Composed of representatives of the Contracting States. |
Composed of parliamentary delegates (mandated by European Parliament and possibly national parliaments) |
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Supervises the European Patent Court, without prejudice to the Court’s judicial independence. Sets up Regional Divisions upon request, appoints judges and the Registrar and exercises legislative and budgetary powers. |
Judges should be appointed for life. All legislative power regarding the statutory laws and rules to be applied by this court must be handed over to the European Parliament, with veto rights given to quorum of national parliaments which includes the parliaments of non-EU signatory states. |
| II/20-31 |
PART II FINANCIAL PROVISIONS |
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Based on the assumption that the EPJ will be financed by its own resources (court fees). Contributions by the Contracting States are foreseen if the EPJ is unable to balance its budget with its own resources (distribution key taking into account three elements: number of European patents effective in the Contracting States, actual litigation activity, equal distribution of a part of the costs). Provisions on advances, budget, authorisation for expenditure, accounting period, auditing of accounts. |
As soon as the income of the court exceeds a fixed limit, the excessive part should be paid back to the member states. There should be no incentive for the court to expand its business by encouraging litigiousness. |
| III.I |
SUBSTANTIVE PATENT LAW, JURISDICTION AND EFFECT OF DECISIONS |
| III.I/32-37 |
Substantive patent law |
Should include a clarification of Art 52 EPC. |
| III.I/32 |
Language of the proceedings (1) The language of the proceedings shall be: (a) in proceedings before the Central Division of the Court of First Instance, the language of the proceedings before the European Patent Office |
The text is unclear about which proceedings. This shows how European Patent Office centered the draft is. The court will handle civil cases. There is no direct relation with the European Patent Office. The summary has: “Before the Central Division of the Court of First Instance, the language of the proceedings will be the language of the European patent or the European patent application”. The language advantage is on the side of the patent applicant. It would be a good principle if people have the right to defend themselves in their own language. Already now Small and Medium sized companies go broke over litigation costs. Using the language used at the European Patent Office would be Western-Europe centered. |
| III.I/33 |
“Decisions of the European Patent Court shall be drawn up in the language of the proceedings.”| People should be able to read the decision in their own language. |
| III.I/38-44 |
Definitions of infringing acts and indirect infringement, rules governing limitations on the effects of European patents and reversal of the burden of proof when the subject-matter of the patent is a process for obtaining a new product, provisions concerning prior use. |
| III.II |
Jurisdiction and effect of decisions |
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The European Patent Court will deal with European patents effective in one or more of the Contracting States. It will have jurisdiction in respect of actions for actual or threatened infringement or for a declaration of non-infringement, actions or counterclaims for revocation, and actions for damages or compensation derived from the provisional protection conferred by a published European patent application. |
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After a 7-year transitional period, the Court will have exclusive jurisdiction to try actions for revocation and actions for infringement where the alleged infringer is domiciled in a Contracting State or where all parties are in agreement; moreover, it will have non exclusive jurisdiction to try actions for infringement where the alleged infringement occurred in a Contracting State even though the alleged infringer is not domiciled in a Contracting State. |
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Rules of Procedure will regulate the allocation of cases to the Central or a Regional Division of the Court of First Instance, taking account of the Brussels and Lugano Conventions as well as Regulation 44/2001: |
The Rules of Procedure must be made explicit and, along with the other statutory provisions of the court, placed under the exclusive legislative competence of the European Parliament, possibly subject to veto power by a quorum of national parliaments. |
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originary actions for revocation shall be brought before the Central Division; it will be possible to bring actions for infringement before either the Division of the country where the defendant is domiciled or the Division of the country where the alleged infringement occurred. |
when the infringment is not clearly concentrated in one location, the location of the defendant is used. The publication of information can never constitute an infringement. |
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The application of Community law will be guaranteed by the Court of Justice of the European Communities which on request by the European Patent Court will issue preliminary rulings binding for the latter in so far as its decision takes effect in a Member State of the European Union. The Contracting States will designate the European Patent Court as their national court for cases concerning the infringement and validity of European patents, so that decisions of the Court will be directly enforceable in all Contracting States without any form of recognition or exequatur. |
| III.III/45-47| Jurisdiction of national courts |
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National courts will retain jurisdiction to order provisional and protective measures provided for by their national law and to order provisional seizure of goods as security for any damages, compensation, costs or any other payment resulting from proceedings before the European Patent Court. |
Given that the EPLA area is not a constitution-based republic, appeal to national supreme (constitutional) courts and ECJ should be allowed. Such appeals must be based on the claim of violation of special national (constitutional) law. |
| IV |
PROCEDURE BEFORE THE EUROPEAN PATENT COURT |
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Includes a chapter laying down basic procedural principles and two chapters on the powers of the European Patent Court and on provisional and protective measures. |
| –- IV.I/48-59| General Provisions |
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Lay down basic procedural provisions concerning case management, publicity, right to be heard, admissibility as a party, oral proceedings, party disposition. Include a list of means of giving and obtaining evidence and rules on the onus of proof, production of evidence, witnesses, court fees and apportionment of costs (loser pays costs, apportionment when equitable). |
Oral procedings can only be conducted if the parties require them or receive reimbursement of travel fees from the court. The court should normally communicate with the parties through open standards via the Internet, including digitally signed and time-stamped E-Mail. |
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Rules of Procedure shall lay down the details of proceedings before the European Patent Court. |
| IV.II/60-69 |
Powers of the European Patent Court |
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The Court’s power to order measures, securities, sanctions and fines as laid down in the Agreement is provided for in a general provision. Specific powers are defined: the European Patent Court may order astreintes, where a party does not comply with an order of the Court injunctions, such as orders to desist from infringing acts forfeiture, meaning the destruction or disposal of infringing goods, materials or devices damages, which may not be punitive but must be adequate to compensate for the injury suffered and restore the injured party to the position he would have been in if no infringement had taken place. |
Patents claims can not be presumed to be valid. Full compensation can be awarded only for the infringments which occurred after the court confirmed that a valid patent was infringed. |
| IV.III/70-75 |
Provisional and protective measures |
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Finally, the European Patent Court shall have the power to order provisional and protective orders such as inspection of premises and the preservation of evidence (“saisie contrefaçon”), freezing orders and sequestration of allegedly infringing goods. |
| V |
PROCEDURAL REMEDIES |
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Two procedural remedies will be available before the European Patent Court: from decisions of the Court of First Instance an appeal shall lie to the Court of Appeal; as an extraordinary remedy any party may file a petition for review. |
| V.I/76-81 |
Appeal |
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The appeal is the ordinary procedural remedy with suspensive effect. As a general rule, only final decisions shall be appealable. The appeal may only be based on the grounds that the facts alleged by the parties were not correctly established, or that, based on the established facts, the law was not correctly applied. New facts or evidence may only be taken into consideration by the Court of Appeal in exceptional cases. |
| V.II/82-83 |
Review of decision |
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As a limited judicial review, any party which is adversely affected by a decision against which an appeal is not or no longer possible may file a petition of review by the Court of Appeal. A petition may only be filed on the grounds that a criminal act may have had an impact on the decision, or that a fundamental procedural defect has occurred in proceedings before the Court of Appeal. |
| Va/83a-83f |
FACULTATIVE ADVISORY COUNCIL |
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The Court of Appeal shall perform the functions of the Facultative Advisory Council (FAC), i.e. deliver non-binding opinions on any point of law concerning European or harmonised national patent law, at the request of a national court or quasi-judicial authority. Special provisions deal with the law applicable to the FAC and the procedure regarding the delivery of opinions. A reservation system enables the Contracting States to be bound only by Part Va, and thus to participate in FAC-related matters only (financing, voting rights in the Administrative Committee). |
The special provisions mentioned here must be subject to direct parliamentary approval and review. |
| VI/85-99 |
TRANSITIONAL AND FINAL PROVISIONS |
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Clarify the application of the Agreement to effective European patents and pending patent applications. Transitional period of seven years, where national courts of the Contracting States will have a parallel jurisdiction to the European Patent Court. Provisions on signature, ratification, entry into force and revision. |
