For decades, Europeans have been debating a unified patent system. The issue seemed resolved in 2011, when 25 countries agreed to push ahead without Italy and Spain under an “enhanced co-operation”. Italy and Spain have so far opted out of the patent proposal due to disagreement over the proposed language regime. An agreement appeared to be within reach, but a fresh dispute over whether the Central Division of the Unified Patent Court should be in London, Paris or Munich tempered the optimism.
A plenary session at the European Parliament on the EU Patent Package, which was scheduled for 14 February 2012, has been postponed and hadn’t been rescheduled at the time of going to press. Indeed, as indicated by the EU Parliament’s Legal Affairs Committee on 30 January 2012, there will be no vote until an agreement on the Central Division’s location has been reached.
It is, at the moment, the only outstanding issue in the patent package and the participating Member States have agreed to reach a final agreement by June 2012 at the latest. But observers have pointed to other contentious issues and it is probable these will also be the cause of heated discussions.
The Location of the Central Division
An important role will be attributed to the Central Division: under the proposed plans, stand-alone patent revocation actions and actions for declarations of noninfringement will have to be commenced there. In addition, the local divisions of the Unified Patent Court, i.e., local courts of the Member States, may refer revocation counterclaims to the Central Division. This would allow the proceedings between validity and enforcement to be separated, as in German courts.
On this basis, argues France and the United Kingdom, locating the Central Division in Munich would promote the German split system and thus hinder a reasonable synthesis of the various judicial practices in Europe where validity and infringement of patents are dealt with predominantly in the same court. Furthermore, as Germany already hosts the European Patent Office, France and the United Kingdom argue that Germany would be unfairly favoured by hosting another important intellectual property institution in Europe. However, as Germany is Europe’s biggest issuer of patents and handles the majority of Europe’s patent infringement cases, it would suggest its patent enforcement system is the most valued and proven in Europe.
There is also heavy resistance over the involvement of the Court of Justice of the European Union (CJEU). Its jurisdiction stems from Articles 6 to 8 of the proposed Regulation, which would allow the CJEU final judgment on matters of substantive patent law. The resistance is based mainly on instances where questions of interpretation in trade mark cases have been referred to the CJEU. It is argued that involving the CJEU will lead to extra costs and delay, and that judgments will be issued by judges who don’t have any solid knowledge and experience in the patent field.
These are not the only concerns. As the system may not work as planned, stakeholders claim there must be a way out. These may include a right to litigate national patents issued by the European Patent Office in national courts and a right and mechanism for patentees and countries to opt out of the system.