Intellectual Property

The European Patent Court

On 3 April 2007, the European Commission published a Communication entitled "Enhancing the Patent System in Europe External Link". This Communication took stock of current problems with the European patent system, and outlined a strategy for action, in the context of existing proposals for a Community patent External Link and a European Patent Litigation Agreement External Link.

Although the European Patent Office External Link (EPO) is able to search, examine and grant patents in a single procedure for up to 34 European states, once granted these are treated as separate national patents in each designated state. This means they must be enforced or challenged in separate actions before each national court, resulting in high costs and uncertainty for patent owners and users. Moreover, the threat of expensive legal action can make it difficult for companies, especially SMEs, to use, enforce or licence patents, and to take effective business decisions.

The Communication recommends that the EU create a single European Patent Court, which will be able to resolve disputes involving patents granted by the EPO for multiple Member States, by delivering judgments which have EU-wide effect. This Court should also be able to hear cases involving Community patents External Link once these begin to be granted.

The Communication also sets out ideas on how such a Court could be created. One of these is to create a new specialist court via the European Patent Litigation Agreement External Link (EPLA), of which the UK has been a firm supporter. Another option is to use existing national and European courts. The Communication was presented and discussed during the German Presidency, which held three expert working groups to discuss its content, and presented a progress report External Link.

The Portuguese Presidency began working group discussions on the European Patent Court during the second half of 2007, with the aim of identifying points of consensus between the two main options. These discussions culminated in a working document External Link that sets out a possible structure for the Court. The Presidency presented a progress report External Link to the EU Competitiveness Council on 22 November 2007. The report acknowledges that progress has been made, and there is consensus on many aspects of the current draft proposals, but disagreement remains on certain key issues, in particular the proposal to separate infringement claims from invalidity counterclaims. The Competitiveness Council agreed External Link on the need "to continue work towards finding solutions for a Europe-wide patent litigation system and a Community Patent"

Slovenia took on the Presidency of the European Union at the start of 2008. They timetabled seven meetings to discuss the European Patent Court. Initial discussions focussed on court procedures and remedies, and proposals on the Court’s structure on the basis of a working document on the European patent court External Link The most recent Council discussions on the European patent court took place in April 2008, when a draft legislative text External Link was discussed. Following this, the Presidency has amended and added to the text and the Draft Agreement on the European Union Patent Judiciary External Link was discussed at a working group on 28 May. Revisions of the text were issued on June 30 in the most recent working document External Link.

The French Presidency began on 1 July and discussions regarding the European Patent Court are to continue during the next working group on the 24 and 25 July.

Key documents