27 February 2006

European Patent Litigation Agreement: EPO Assessment

Europe has had a common patent office acting as agent for the governments of the nation states of Europe for well over 30 years but it has 31 different legal systems for enforcing such patents. The procedures and costs of those 31 jurisdictions differ widely. According to Annexe 1 of an Assessment published today by the European Patent Office the overall cost for each party of a patent case with a sum in dispute of €250 000 is estimated to lie at around €50 000 at first instance and €90 000 at second instance for both validity and infringement in Germany, between €50,000 and €200,000 at first instance and €40,000 and €150,000 in France, between €60,000 and €200,000 at first instance and €40,000 and €150,000 in the Netherlands and between €150,000 to €1,500,000 at first instance and €150,000 to €1,000,000 at second instance in England and Wales.

At intergovernmental conferences held in Paris in 1999 and London in 2000 a working party was set up to propose an optional agreement on an integrated judicial system for the settlement of litigation concerning European patents. A lot of work was done including a draft agreement on the establishment of a European patent litigation system and a draft statute of a European patent court on 16 Feb 2002. Much of the steam went out of that work when it appeared that there would be a Community patent with a Community patent court. That must have been particularly galling for the Swiss whose federal patent office did much of the work on the draft agreement, statute and rules of procedure.

The European Patent Office project has revived a little today with the publication of an
Assessment of the impact of the European patent litigation agreement (EPLA) on litigation of European patents.
A significant saving will be in costs. Litigation before the proposed European court will be significantly cheaper than before the Patents Court in London though it may be more expensive than proceedings before other national courts. However, it will have pan-European jurisdiction.

One of my proposals to Andrew Gowers will be British support for the EPLA and its rapid implementation.

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