1. Harrie Temmink Industrial Property Unit European Commission
Future of European Patent Litigation: the EC views BIICL, 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