22 March 2011

Thou Shalt Not Have Any Patent Courts Before Me!

European Court of Justice - Luxembourgphoto © 2006 Cédric Puisney | more info (via: Wylio)

What do the Bible and the Treaty on the Functioning of the European Union (TFEU) have in common?
Perhaps it’s that they both represent various collections of sacred scriptures that are exclusively interpreted by specifically established bodies. Yes, the Pope’s authority as the sole authentic and true interpreter of the Bible can be correlated with the rights of the Court of the European Union (“Court” ) with respect to the TFEU.

The Court’s currently published Opinion 1/09 on the creation of a unified patent litigation system and a European and Community Patents Court is a good example of this. Its holding reminds me of the First Commandment and evaporates any hope of moving the European patent system closer to the US American one.

In the beginning… was the European Patent Convention

The European Patent Convention (EPC) provides a legal framework for the granting of European patents via a single, harmonized procedure before the European Patent Office (EPO).

Nevertheless, subsequent to its granting, a European patent is not a unitary right, but a group of essentially independent, nationally enforceable and nationally revocable patents.
And this is where the problems start: a patent holder with a number of equivalent European patents might have to choose where, e.g. under which patent and legal system, to sue an infringer. Factors influencing this choice of forum would include, among other things, the likelihood of success, or the speed and cost of the proceedings.
However, if litigation in multiple jurisdictions proves to be necessary, it is possible that different courts will reach different decisions, even with patents granted by the EPO and containing identical claims…

As is known, this is not the case in the US where they have a unitary patent law, a single granting authority and a unitary patent jurisdiction.

Those who live in the European Union writhe in pain, waiting for relief

A number of reform proposals have been made to ease the difficulties I outlined above, such as: the creation of a unitary Community patent, the establishment of a Community Patent Court, or the replacement of the EPC with a Community patent system.
And, recently, it seems things have started to heat up a bit: the newly authorised Enhanced Cooperation On Creation Of Unitary Patent Protection may smooth the way to a unitary patent, granted as an EU designation within the EPO framework.
But, owing to Court’s Opinion 1/09, an EU patent will still need to be enforced country by country.
It’s still not the whole nine yards.
Besides, I do not understand why the Court behaves just like the jealous God and shows itself anxious in tolerating a parallel (patent) jurisdiction it cannot control.
By the same token, the specialists at the EPO insist on an own court, serving as the ultimate authority in patent cases . Their reasoning is that the court Court would not have the sufficiently skilled personnel and thus the capability to properly deal with patent matters.
Looks like a dead-end to me.

Revelations for holders of European and future Community patents

Given the problem with the Enhanced Cooperation, it will take years to evaluate its overall effect on the European patent system.
Moreover, without unitary jurisdiction and enforceability, its main objective appears limited to merely language -related cost savings.

So pray, my brothers and sisters! Pray that the Court in Luxembourg shall be manned with skilful judges to rule on our patent cases!

 

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