In the December 2006 edition of this Update, we discussed what appeared to be the rise and subsequent fall of the European Patent Litigation Agreement (the “EPLA”). Despite recent efforts at revival, it now appears that the EPLA is dead.

In December, we reported that the prospects for the formation of a central European Patent Court by way of the EPLA seemed slim when it became clear that the EPLA was set to be blocked by Member States, with France leading the opposition.

One of the French government’s principal objections was that the EPLA proposed a central European Patent Court under the control of national patents judges. The French felt that this was unsatisfactory in that it would lead to a multiplication of courts in Europe having jurisdiction over patent litigation which could lead to conflicting decisions. The latest French proposal to try to overcome their objection is a Community-based solution which builds on the existing jurisdictional structure of the European Union whilst still reflecting the framework of the EPLA. This would require international agreement between Member States to attribute a new competence to the Community jurisdiction.

The proposal would also require the creation of a specialist judicial panel to hear such patent cases. The French propose that specialist judicial panels would be situated in Member States and that specialist national judges would sit as part-time Community judges. A further specialist panel would also be created to hear appeals and that such appeals would be to the Court of First Instance. The French proposal also envisages that the applicable law would include the relevant provisions of the European Patent Convention.

The French proposal has not met with universal support. Commenting recently on the proposal, the Internal Market Commissioner, Charlie McCreevy, said that “In essence, it is a question of putting forward a credible proposal and gradually building an agreement around it. Not having a number of competing ideas on the table at once.”

Germany holds the rotating presidency of the EU until June of this year. As a supporter of the EPLA, the German government is keen to push the issue of reform of Europe’s patent system up the agenda before Portugal takes over the presidency on 1 July. At the end of January, the German Federal Minister of Justice, Brigitte Zypries, said that “It is my belief that we should focus on completing the initiatives already underway, namely the London Protocol and the uniform dispute settlement system offered by the EPLA.”

However, at the beginning of February, the EPLA suffered perhaps a further setback. In an interim legal opinion, the European Parliament’s legal service has stated that Member States do not have the right, whether acting singly or collectively, to set up the European Patent Judiciary necessary to implement the EPLA. The opinion concludes that the Community has the exclusive competence for matters governed by the EPLA.