European Patent Court

Currently, the European Patent Office External Link (EPO) is able to search, examine and grant patents in a single procedure for up to 36 European states. Once granted these are treated as separate national patents which means that they must be enforced or challenged in separate actions before each national court. This issue, along with related issues, was looked at in a 2007 European Commission Communication "Enhancing the Patent System in Europe External Link". One of the main recommendations was that the EU creates a single European Patent Court which would resolve disputes involving patents granted by the EPO, by delivering judgments which have EU-wide effect. This court would also be able to hear cases involving EU patents once these are available.

The Communication also set out a number of possible options on how such a court could be created. The preferred option was to create a new specialist court via an international agreement, similar to the European Patent Litigation Agreement External Link (EPLA). During 2007 a number of meetings were held which culminated with a proposal External Link for the possible structure for the court. At the end of 2007 the Portuguese Presidency presented a report External Link to the EU Competitiveness Council which outlined areas of progress as well as highlighting areas of discord.

During 2008 there were several meetings to discuss the European patent court proposals External Link. Initial discussions focussed on court procedures and remedies, and proposals on the court’s structure. Council discussions on the European Patent Court took place in November 2008, when a Draft Agreement on the European Union Patent Judiciary External Link was discussed, and the French Presidency subsequently presented a progress report External Link to the EU Competitiveness Council on 1 December 2008.

In the first half of 2009 the Czech Presidency held further meetings to discuss more detailed issues relating to the court. On 26 February 2009 a report External Link on Prof. Dietmar Harhoff’s economic cost-benefit analysis of a Unified Patent Litigation System (UPLS) was published. On 20 March 2009 the Commission adopted a negotiating Recommendation External Link regarding the UPLS, which, on 2 April 2009, was presented to the Working Party on Intellectual Property (Patents). On 23 March 2009 a draft agreement on the court External Link was presented. Following this, the Presidency submitted a Request for an opinion External Link on the UPLS to the ECJ, followed by a progress report External Link to the EU Competitiveness Council on 18 May 2009.

The current Swedish Presidency, keen to reach agreement on the major issues relating to the UPLS before the end of 2009, have held several working groups to address these issues, which include bifurcation, affordability, languages and the composition of the panels of judges. Discussions at these working groups have resulted in Council Conclusions External Link which were agreed at the Competitiveness Council on 4 December 2009.

Key documents

Internet links