It is also proposed that parties will have to apply specifically for "discovery" by showing that the other party is likely to have documents that are significant to live issues in the dispute. As a consequence, a "saisie" will rarely be needed. However, if a saisie is still required in order to commence an action, the presumption will be that this should be done on notice. The parties will have the right to examine a witness, subject to the Court's control.
One of the final sticking points in the proposed arrangements was the location of the Central Division. This was resolved on 29 June 2012 when the European Council agreed that the Central Division of the Court of First Instance should be located in Paris, with specialist divisions located in London (chemistry, pharmaceuticals and life sciences) and Munich (mechanical engineering). The Council also agreed that the controversial Articles 6-8, which would have given increased jurisdiction over patent matters to the CJEU, were to be removed.
However, this agreement still needed to be approved by the European Parliament and the vote scheduled for 4 July 2012 was postponed amidst strong disapproval from European Parliament rapporteurs. The European Parliament Legal Service had advised that the removal of Articles 6-8 would render the agreements incompatible with the requirements of the Treaty on the Functioning of the EU and hence liable to be struck down at a later stage.
This has therefore meant yet another delay while the issue is given more consideration. The current draft of the Agreement was published on 28 September 2012, which incorporates the agreed location of the Central Division and currently also includes the controversial Articles 6 and 8. The Court of Justice of the European Union also heard Spain and Italy's arguments as to why the use of the "enhanced procedure" to press ahead with the Unitary patent system without their agreement breaches EU law. The new Agreement will now be debated by the European Parliament on 10-11 October 2012.
Despite these complications, the overall aims of the Unitary Patent remain highly desirable and the Cypriot Presidency would like to reach an agreement before the end of the year. We wait to see if this can eventually be achieved.