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EPLA - European Patent Litigation Agreement

Today, in case of infringement of a European patent, it is necessary to act before the national courts.

However, the European Patent Litigation Agreement should allows

- to commit the signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court;

- to define a common entity that could be established and financed to which national jurisdictions can refer, with a view to obtaining advice, that part of any litigation relating to validity and infringement.

1999 : Creation of a working party on litigation

2003 : The Working Party on Litigation adopted a Declaration stressing that

  • the proposed jurisdictional arrangement offers an optimum solution for users of the European patent system
  • the drafts constitute a suitable basis for convening a Diplomatic Conference to adopt the new court system

The Declaration also acknowledges, however, that the establishment of a litigation system for European patents has to be paused, in view of the work being done by the European Union to introduce a Community patent with a judicial system of its own.

2007 : The EU Commissions adopted a communication "Enhancing the patent system in Europe"

It suggested an integrated approach which combines features of both EPLA and a Community jurisdiction as initially proposed by the Commission. The work on an integrated judicial system has since then continued on EU level.

 

The main features of the Draft Agreement and Statute are as follows:

A new international organisation – the European Patent Judiciary (EPJ)

The EPJ is set up by the EPC Contracting States committing themselves to the proposed integrated judicial system.

The organs of the EPJ are the European Patent Court (comprising the Court of First Instance, the Court of Appeal and a Registry) and the Administrative Committee.

The substantive patent law contained in the Agreement is closely related to the corresponding provisions in the 1989 Agreement relating to Community patents

- the definitions of infringing acts and indirect infringement,

- the provisions on limitation of the effects of the European patent and the reversal of burden of proof.

The application of Community law, in particular the Brussels and Lugano Conventions and Council Regulation 44/2001, is dealt with in specific provisions of the Agreement. On request by the European Patent Court, the European Court of Justice in Luxembourg will issue preliminary rulings binding for the European Patent Court in so far as its decision takes effect in a Member State of the European Union.

Finally, national courts retain jurisdiction to order provisional or protective measures provided for by their national law and to order provisional seizure of goods as security for any damages, compensation, costs or any other payment resulting from proceedings before the European Patent Court.

Procedural provisions

Part IV of the Agreement lays down basic procedural provisions (e.g., case management, publicity of proceedings, evidence, "loser pays costs" principle). In addition, it spells out the powers of the European Patent Court to order measures and impose securities, sanctions and fines (e.g., astreinte, injunction, forfeiture, damages) and to order provisional and protective measures (preliminary injunction, orders for inspection of property (saisie contrefaçon), freezing orders, sequestration).

Appeal

An appeal may only be based on the grounds that the facts alleged by the parties were not correctly established, or that, based on the established facts, the law was not correctly applied. New facts or evidence may only be taken into consideration by the Court of Appeal in exceptional cases. The petition for review is not a further appeal to a third instance but a limited judicial review which may only be based on the grounds that a criminal act may have had an impact on the decision, or that a fundamental procedural defect has occurred in proceedings before the Court of Appeal.

Judges

Cases will be heard by panels of three or five judges; at least one judge shall be a technically qualified judge and at least two shall be legally qualified judges; the legally qualified judges shall be of at least two different nationalities.

Language

The language regime is based on the time-honoured language regime of the EPO (three official languages), as adapted to post-grant litigation (on the model of the London Agreement on the application of Art. 65 EPC).

At first instance, the language of the proceedings will be:

- Before the Central Division, the language of the proceedings before the EPO.

- Before a Regional Division located in a State having an EPO official language as official language, that official language.

- Before a Regional Division located in a State having either more than one or no official language which is one of the official languages of the EPO, any official language of the EPO designated by that State.

Before the Court of Appeal, the language of the proceedings will always be the language of the first-instance proceedings.

Finally, if the parties agree, the Court may allow the use of a language other than the language of the proceedings during all or part of the proceedings.

Representation

Representation before the European Patent Court will be compulsory and entrusted to persons registered as European patent counsel, who may be assisted by professional representatives.