European Patent Litigation Agreement

European Patent Litigation Agreement

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". [ [ European Patent Office microsite, "Legislative Initiatives in European patent law", EPLA - European Patent Litigation Agreement] , retrieved on July 11, 2006 ]


Under EPC Article|64|3, any infringement of a European patent is dealt with under national law. Additionally, once the 9 month opposition period under EPC Article|99 has expired, there is no centralised way of challenging the validity of a granted patent.

Furthermore, Council Regulation (EC) No 44/2001 "on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters" does not adequately deal with the particular complications thrown up by intellectual property disputes. Such disputes are typically based on parallel national rights rather than European-wide rights. [Cite BAILII
litigants=Research In Motion UK Ltd v Visto Corporation

As a consequence, parties wishing to litigate a patent often find themselves in the unsatisfactory position of having to litigate as much about where and when disputes should be heard and decided as about the real underlying dispute. [Cite BAILII
litigants=Research In Motion UK Ltd v Visto Corporation


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. The EPO level proposal parallized a similar EU level proposal for a Luxembourg European Patent Court by the European Commission and Council [cite web
title=Industrial property: Commission proposes establishing Community Patent Court
url= |
] in conjunction with the community patent.

In 2006, the European Commission launched a public consultation on future patent policy in Europe, [ European Commission, DG Internal Market and Services, [ "Consultation and public hearing on future patent policy in Europe"] , Retrieved on September 6, 2006. ] 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. [ European Commission, DG Internal Market and Services, [ "Consultation on future patent policy in Europe: Public hearing: Speeches and PPT presentations"] , Retrieved on September 6, 2006. ]

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" [ Charlie McCreevy, European Commissioner for Internal Market and Services, [ "Closing remarks at public hearing on future patent policy", Public Discussion on Future Patent Policy in Europe] , Brussels, 12 July 2006. Retrieved on August 30, 2006. ] while closing the abovementioned public hearing on future patent policy in Europe.

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. [ European Parliament Public Register of Documents, [ "European Parliament resolution on future patent policy in Europe"] , October 12, 2006. ]

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". [ IPEG, [ "European Patent Judges agree on rules and procedures for new EU Patent Court"] , Tuesday, November 7, 2006. ]

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. [ IPEG, [ "Negative Opinion on powers of EU member states to agree individually on EPLA"] , February 10, 2007, posting a [ document] dated February 1, 2007 (SJ-0844/06 D(2006)65117 "Interim Legal Opinion"), which does not appear on the European Parliament web site and which apparently was not meant to be published (the status of the document is unclear). ]

Earlier, on January 30, 2007, Sir Nicholas Pumfrey, a British judge supporting the EPLA, is reported to have told the audience at a seminar in London that it appeared that the EPLA had "finally died". "It is a minor but quite important disaster. We thought we had done it", he added. [ Cited in Managing Intellectual Property News, " [ Germany urges action on European patent reform] ", February 1, 2007. The seminar appears to have been the [ MIP Gowers Review Discussion] held at Lovells, in London, on January 30, 2007. About the seminar, see also Managing Intellectual Property, [ "Gowers debate highlights reform concerns"] , March 2007. ]


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. Fact|date=April 2007

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 [ Official Journal of the European Communities, January 16, 2001 [ Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters] ] ).

France may also have constitutional problems to sign and ratify such a far-reaching agreement. [ IPR, innovation and economic performance, OECD Conference, Paris 28/29 August 2003, page 5, second slide of [ (pdf)] ]


The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law. [ Swiss Federal Institute of Intellectual Property, [ "European Patent Litigation Agreement (EPLA)"] , November 18, 2002. Retrieved on July 11, 2006 ]


See also

* European patent law
* Community patent
* London Agreement
* Brussels Regime, i.e. Brussels Convention, the Lugano Convention, and the Brussels I Regulation (Council Reg (EC) 44/2001)
* Directive on the enforcement of intellectual property rights
* Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights "(proposed)"

External links

* European Patent Office web site (including additional links)
** [ EPLA summary]
** [ Mandate of the working party on litigation] (1999)
** [ Declaration of the Working Party on Litigation] (2003), [ here] or [ here]
** [ Official draft agreement] (2004) or [ here]
** [ Official draft statute of the European Patent Court] (2004) or [ here]
* European Patent Lawyers Association (EPLAW) web site
** [ First Venice Resolution] (November 2005)
** [ Second Venice Resolution] (November 2006)

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