Since the leapfrog in progress last year towards a unified patent system, progress has been on hold pending agreement on the location of the proposed Unified Patent Court. In late June the European Council overcame this impasse. It was agreed that the seat of the Central Division of the Court of First Instance and of the office of the President of the Court would be in Paris. A specialised division for chemistry, including pharmaceuticals and medical devices, is to be hosted in London and another for mechanical engineering will be based in Munich.
As you may recall from our previous report the central division is proposed in addition to national and regional branches. At this stage we are uncertain as to whether Ireland will host a local branch of the Court or will enter a regional division, originally proposed to comprise the United Kingdom, Ireland and Portugal. The only other regional division that we are potentially aware of at this stage is between Austria and Germany, as it appears that other member states have opted for local branches of the Court.
While much of the detail remains to be decided, the Council has agreed that the parties will have a choice to bring an infringement action in the central division if the defendant is located outside the European Union or if a revocation action is already pending before the central division. A defendant will not be able to request a transfer of an infringement case from a local division to a central division if the defendant is domiciled within the European Union.
Significantly, the Council recommended that the much debated Articles 6-8 of the proposed Regulation should be deleted, which effectively means that the CJEU would have no role in determining infringement. However, many other key issues remain undecided such as whether infringement and validity should be dealt with separately, the rules of the new court, administrative and transitional arrangements.
It was anticipated that the European Parliament would vote on the new patent arrangements in early July. However, after furious lobbying of MEP’s and a raised level of discussion amongst the profession and interested parties, the Parliament postponed its vote on the legislation on the basis that it had not had the opportunity to consider the deletion of Articles 6-8 as recommended by the Council at its June meeting. This leaves the timetable for signing the Agreement on a Unified Patent Court and for completion of the regulations up in the air and whether the first unitary patent will be filed in April 2014 as planned is anyone’s guess. On top of all of this there is of course Spain and Italy’s pending action to block the adoption of the system on grounds of illegality under EU law. While it has been a very long 40 years getting to this point in the process, there is now such political momentum to move forward that it looks as if even these hurdles will fall.