On 12 July the Portuguese Presidency issued a working document setting out its views on the options for a European patent litigation system. A meeting of the Council working group on patents took place on 20 July and further meetings are scheduled before the end of the year. The European Commission Communication issued on 3 April presented three options, namely the European Patent Litigation Agreement (EPLA), a Community court system and a Commission proposal for a compromise based on the EPLA which would be integrated within the Community’s jurisdiction. The Presidency working document addresses how these proposals could be implemented.

Addressing the degree of decentralisation of the first instance courts, the Presidency suggested (a) a central division with a limited number of regional chambers in Member States depending on the number of cases and experience gathered (similar to the proposal in the EPLA) or (b) a limited number of national courts and tribunals of first instance designated by the Member States, drawing upon the Community Patents Protocol on litigation. These proposals would allow patent tribunals to be available in all Member States, using existing infrastructures. Although the Presidency proposals do not address the composition of the judicial panels sitting in such national Courts, it is conceivable that the panels could be composed of a local patents judge and two “travelling patents judges” thereby conferring uniformity of approach across the first instance courts.

Addressing the second instance courts, the Presidency reported that there is consensus among Member States that there should be a centralised appeal court dealing with both matters of fact and law in relation to both infringement and validity. On the question of how the appeal court would be linked with the Community judicature the Presidency suggested that one option would be to establish a specialised patent litigation chamber at the Court of First Instance (CFI) and/or European Court of Justice (ECJ). Alternatively an independent appeal court could be established, but allowing the ECJ to address principles of law on matters covered by Community legislation.

The Presidency pointed out the need for technical expertise in the courts and suggested technical judges or nonvoting technical assistants (scientific advisers).

With regard to the allocation of cases the Presidency envisaged that the jurisdictional rules of the first instance courts will follow Regulation 44/2001 (the Brussels I Regulation) with necessary modifications to permit jurisdiction over validity in counterclaims along the lines of the Community Trade Mark Regulation 40/94. The working document does not address actions for revocation alone, which under the Brussels I Regulation would have to be brought in the State of registration of the patent.

It is understood that the Council working group aims to have conclusions on these matters, and others, by the Competitiveness Council meeting on 26/27 November.