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Future of European Patent Litigation: the EC views BIICL, London, 22 January 2007

Future of European Patent Litigation: the EC views BIICL, London, 22 January 2007. Harrie Temmink Industrial Property Unit European Commission. EC initiatives. Commission Proposals on Community patent (2000) Council “common political approach” (2003)

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Future of European Patent Litigation: the EC views BIICL, London, 22 January 2007

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  1. Future of European Patent Litigation: the EC viewsBIICL, London, 22 January 2007 Harrie Temmink Industrial Property Unit European Commission

  2. EC initiatives • Commission Proposals on Community patent (2000) • Council “common political approach” (2003) • on, inter alia, jurisdictional arrangements • Commission Consultation on Future Patent Policy in Europe (2006) • highlighted two major issues – but also other matters: • Languages (London Protocol, Community patent) • Jurisdiction (EPLA, Community patent) • Quality of patents, use of patents, alternative dispute resolution schemes, awareness raising… • Commission policy line under preparation • European Council Conclusions December 2006

  3. Draft European Patent Litigation Agreement (EPLA) • Optional agreement to the EPC creating a unified system for litigation concerning the infringement and validity of European patents • Draft EPLA partly deals with matters covered by Community legislation • in particular Regulation 44/2001, Directive 2004/48 • “shared competence” EC and Member States • Community involvement necessary • EPLA can only be concluded as a “mixed agreement” with both EC and MS as parties • Council must give negotiating mandate to Commission (Article 300 EC)

  4. Commission proposals on the creation of a Community Patent Court for COMPATs (2003) • Despite failure Council “common political approach” still interesting material • Unitary EC court with exclusive competence for certain types of actions/claims • Article 229A EC enables conferral jurisdiction on European Court of Justice in disputes relating to Community industrial property rights • In first instance: creation Community Patent Court as a “judicial chamber” ex Article 225A EC; appeal Court of First Instance • Specific rules on languages, qualification judges etc.

  5. Way forward? • Options include: a) “Pure” draft EPLA for European patents b) “Pure” Community Patent system for future COMPATs c) Community court system takes both future COMPATs/European patents d) EPLA court system takes both European patents/future COMPATs (with link to ECJ) • Legal challenges • Polarised positions • Commission is reflecting on finding ways to bridge the various opinions

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