Paris, London and Munich to share Central Division with no reference to CJEU on infringement provisions.
On 29th June, Commissioner Barnier announced the European Council's agreement on the seat of the Central Division of the Unified Patent Court (UPC), "the final element in the [European] patent package".
Central Divisions: Paris will be the main seat of the Central Division of the Court of First Instance of the UPC, with two specialist sections in London and Munich:
- The London section of the Central Division will hear cases involving chemistry, including pharmaceuticals (classification C), and human necessities(classification A)
- The Munich section will handle mechanical engineering cases (classification F)
Infringement: Parties will be able to bring an infringement action before the Central Division if the defendant is domiciled outside the European Union. Furthermore, if a revocation action is already pending before the Central Division the patent holder can bring an infringement action to the Central Division. However, as the European Council proposes, there would be no possibility for the defendant to request a transfer of an infringement case from a Local Division to the Central Division if the defendant is domiciled within the European Union.
The European Council has also suggested that Articles 6 to 8 of the proposed Regulation be deleted. If these Articles were to be included in the Regulation, as has been proposed previously, there would be a danger of a diverging body of law on the interpretation of infringement provisions; on the one hand through references of the UP Regulation to the CJEU (along with the associated delays) and on the other through the body of law already built up by European courts under the EPC.
Motivation: Commissioner Barnier's statement describes this European Council agreement as a "decisive step towards the creation of a unitary patent and a common patent court in Europe. The reform will create a simpler application process and considerably reduce the costs for obtaining patent protection. All future unitary patents will eventually be available in all official EU languages, thus ensuring the dissemination of knowledge and benefiting inventors. I hope that Spain and Italy will also join the new regime soon."
The Commissioner expressed concern that Europe is falling behind the US and China in numbers of patents filed. The hope is that having a single patent and unified litigation in place, will "increase the potential for inventions and innovation within the European Single Market and reassert Europe's competitiveness". The European Commission estimates that an EU-wide unitary patent may cost €680, compared to the average figure the Commission gives of €1,850 for a US patent.
Next: The European Parliament will now be asked to vote on the unitary patent and unified patent court proposals on Wednesday 4th July. Italy and Spain have so far opted out of the proposals, although they could join the proposed new regime at any time.
Comment: This compromise moves the Unitary Patent and Unified Patent Court projects a step closer to reality. There are, however, a number of further challenges that will need to be overcome (there is still very considerable concern both from Governments and industry bodies about the new proposals). Most importantly, the new system will stand or fall on the quality of the Judges who will need to be recruited and on the consistency of the decision making process from country to country.