European Patent Litigation Agreement

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European patent law
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Patent law of the European Union
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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] 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. If the agreement enters into force, this would create a new international organisation with roughly the same competences as the United States Court of Appeals for the Federal Circuit (CAFC).

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. 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]

1 Arguments of proponents
2 Arguments of critics
3 Legal provisions
4 Competence problems
5 Trivia
6 References
7 See also
8 External links

[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). Proponents claim this reduces 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 (see also EU's Lisbon Strategy). 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 solve similar problems.

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" ^[5] while closing the abovementioned public hearing on future patent policy in Europe.

[edit] Arguments of critics

Critics claim that the main driving force behind the EPLA is legalising software patents and business method patents via case law, under the assumption that the European Patent Convention still forbids those with the European Patent Office nevertheless granting them since the mid 1980s. ^[6]^[7] They also argue that the proposed "European Patent Judiciary" would lack independent judges and sufficient democratic control; ^[8] while drastically increasing the number of patent litigation cases and additionally their respective costs, ^[9]^[10] none the least because of the need to generate revenue for self-financing. ^[11]

The EPLA would likely infringe the acquis communautaire as it is no EU regulation. ^[12] 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). So institutional questions are of importance. 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 no 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. ^[13]

[edit] Legal provisions

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

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

[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 ^[14]).

France may also have constitutional problems to sign and ratify such a far-reaching agreement. ^[15]

[edit] Trivia

The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law. ^[16]