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Eversheds comment: Europe patent reform moves step closer

Following proposed changes to Europe’s patent system moving a step closer after EU industry ministers agreed to consult Europe’s top court on the legality under EU law of introducing specialist courts to handle patent disputes, Adrian Toutoungi, associate at international law firm Eversheds comments:


Eversheds comment: Europe patent reform moves step closer

“This is an interesting development, but only a small step as the creation of single patent court for Europe has been under discussion for at least 20 years. This is just one component of the 'patent reform package' on which the Commission is working. The other components, i.e the Regulation on the Community patent and clarification of the relationship between the EU and the European Patent Organisation ("EPO") are also bogged down in negotiations.

“The most promising proposal over the last few years for a single patent court for Europe was the draft European Patent Litigation Agreement ("EPLA"), developed under the auspices of the EPO. The EPLA would have been entirely optional: each EPO Contracting State was free to decide whether to take part (allow the single patent court to have jurisdiction over European patent covering its territory) or not. This was a major advantage, as it meant that States which were opposed to the EPLA could not obstruct co-operation between other States which were keen to establish a single court. Unfortunately, the Commission scuppered the EPLA proposal. It took the view that: (i) the EPLA was inconsistent with the EU law; (ii) EU Member States were not entitled to enter into it without the participation of the Commission.

“The Commission has therefore come up with a new proposal: the Unified Patent Litigation System ("UPLS"). This is based on the EPLA proposal. However, various amendments have been proposed which in the view of the Commission will make it compliant with EU law. In particular, the EU (represented by the Commission) will now be a party to the Agreement, along with the EU Member States themselves (and any other EPO Contracting States which want to take part in the single court structure). Secondly, the European Court of Justice will have a role of oversight over the new single patent court.

“The proposal has the advantage that it will be future-proof: it will cover litigation of patents from the existing European Patent system, and also patents from the new Community Patent system which is under discussion. However, it has the disadvantage that the decision on whether to set up a single patent court is taken out of the hands of individual EU Member States. The EU institutions will now have to be involved. Even if qualified majority voting rather than unanimity applies in the Council, getting agreement on the UPLS is likely to be much more difficult than agreement on EPLA would have been. It may turn out to be impossible to get approval. For example, various well-organized pressure groups which oppose software patents (and which have been successful in the past in getting Commission patent proposals thrown out by the European Parliament) are lobbying the European Parliament to oppose the proposed UPLA agreement.”

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