Communication on the future of the European patent system

The European Commission has published a Communication on the future of the European patent system. This Communication focuses on the structure of the European patent system, including proposals for a Community patent and a European Patent Court. It also looks at other ways of improving the patent system, in particular for small and medium-sized companies. The full document , and the accompanying press notice are available on this website.

We would be interested in your views on the proposals to set up a European Patent Court. Specific examples of your experience of litigation in Europe would also be welcome. If you wish to let us know your views, it would be helpful if you could structure your responses around the following questions:

What are the essential features of a European Patent Court? In particular, you may wish to consider the level of specialisation, the language regime, cost, the need for regional chambers, and allocation of cases.

What are your views on option A: the European Patent Litigation Agreement (EPLA)? Does this represent a desirable European patent litigation system?

What are your views on option B: use of the European Community Courts (including the European Court of Justice and Court of First Instance) for patent litigation? How does this system compare to option A?

The Commission’s preferred option is to combine the best elements of option A and B into option C, to ensure that the European Patent Court can deal with future Community patents. Do you agree with the essential features of option C, as recommended by the Commission?

Is it possible (legally and practically) to set up an integrated jurisdiction combining the EPLA and Community jurisdiction? You may wish to consider:

• referral of questions from the EPLA courts to the European Court of Justice (or a specialist panel thereof) under the Article 234 procedure.
• a hybrid system comprising EPLA courts and Community courts
• amending the rules of the ECJ and ECJ-CFI to allow them to operate along similar lines to those proposed in the EPLA

Are there any other factors relevant to European patent litigation that should be taken into account but have not been mentioned in the Communication?

The German Presidency is due to begin discussions of the Communication with the Member States of the EU at the beginning of May. Therefore, comments would be welcome by 1 May if possible, but later contributions will also be taken into account during future work.