Unified Patent Court Comes One Step Closer

When I was called to the Bar in 1977 I spent a lot of time studying the Community Patent Convention which of 1975 because I really thought I would need to know about it. Hélas le temps perdu!. I would have spent the time no less profitably in the Seven Stars.  Forty years on, as they sing at Harrow, there are signs that something close to the original concept of the Community patent is about to become a reality.

On 17 Dec 2012 the Council of Europe and the European Parliament adopted two short regulations:

Regulation (EU) No 1257/2012 of the European Parliament and the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection; and

Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.

These regulations do not establish a Community or EU patent as such but they do provide the very next best thing, namely a "European patent with unitary effect".   

"What's a European patent with unitary effect?" I hear somebody ask from the back of the class? Well it is a European patent - that is to say a patent granted by the European Patent Office in Munich - which is granted with for all the EU member states except Croatia, Italy, Poland and Spain.   Art 3 (1) of Reg 1257/2012 specifies two conditions for such a patent.   The first is that it must have the same set of claims in respect of all the participating member states.  The second is that it must have been registered in the Register for unitary patent protection.

The implementation of Regulation 1257/2012 was dependent on the establishment of a patents court for the participating member states.   One of reasons why we do not already have a European Union or Community patent is that member states have been unable to agree on a mechanism for resolving disputes over European patents.   The difficulty is that the judges in some states have more experience of patent litigation than others and that litigation in common law jurisdictions is (or at least was until the new Patents County Court rules were introduced) considerably more expensive than in civil law countries.  A solution has been provided by the Agreement on a Unified Patent Court which was signed by all the EU member states except Spain and Poland including Italy which is not one of the states participating in the European patent with unitary effect.

The Agreement establishes a Unified Patent Court for the participating states consisting of a Court of Appeal, Court of First Instance and a Registry.   The Court of First Instance will be based in Paris with sections in London and Munich. The London section will hear cases involving chemical and pharmaceutical patents whereas Munich will handle mechanical patent cases and Paris just abut everything else. The Court f Appeal will be in Luxembourg.   The Court is likely to sit in other national and perhaps regional divisions so maybe we shall see a division of the Unified Patent Court in my beloved Manchester one day.  "Aye happen", as we Mancunians say. 

The agreement which annexes the Court's statute sets out the basic rules but these will be supplemented by Rules of Procedure which are already n their 15th draft.  Right now there is a consultation on these draft rules that have been drafted by a committee chaired by Kevin Mooney of Simmons & Simmons. The committee's members include Lord Justice Floyd together with 2 members each from France and Germany and one from the Netherlands. Right now there is a consultation on those rules - which are very long - some 382 at present - and responses have to be directed to secretariat@unified-patent-court.org by 1 Oct 2013.

Drafting rules of procedure is only one of a whole raft of tasks to be undertaken before the new court takes off. Others include finance, IT, facilities and training.   A preparatory committee consisting of representatives of all the participating states has been formed and they have adopted a road map or programme of work for the next two years or so.  All this and bags of other useful information can be downloaded from the Unified Patent Courts very own website at http://www.unified-patent-court.org/.

If you want to know more about the Unified Patents Court I shall certainly be writing lots of articles and giving lots of lectures.  If you have a specific enquiry call me on 020 7404 5252 or send me a message through my contact form.  As with everything else I can be contacted through twitter, Facebook, G+, Linkedin and Xing.   

In the meantime there are two good videos from the European Patent Office you may want to watch:

• Stefan Luginbuehl on "Unified Patent Protection and Unified Patent Court"; and
• a mock trial relating to a patent for a folding attic stairway before Professor Sir Robin Jacob.

If you want to learn the sorry saga of the Community or EU patent I can think of no better place to start than Axel Horns "A Unified European Patent System - the Historical Perspective" 18 Feb 2010 IP Jur.   

Have a good weekend chaps!