European Commission tries to put patent law out of the acquis
When it comes to legal hacking in patent law, the patent establishment seems to be well connected to the European Commission. After the ECJ opinion on the central patent court, the European Commission is now trying to find a solution to go on with some kind of supra-national system 25 countries that would be legally outside outside of the European Union. The Commission is inventing new ways of making legislation outside of the EU framework, especially when patent applicants do not want to see patent law integrated inside the European Union´s set of laws, the "acquis communautaire".
The hack found by the patent establishment to go around the decision of the ECJ are summarised in the Commission´s statement:
Considering that the unified patent court would be a court set up by Member States only, it would seem possible for the Commission to start infringement proceedings against all Member States jointly in cases where the unified patent court violated Union law. Similarly, in such a case, the rules on financial liability to make good damages caused to individuals as a result of a breach of Union law also seem to be applicable to all Member States jointly. Both aspects would nevertheless need to be clarified in the agreement including where a Köbler claim could be brought (namely in a forum where its full effectiveness is ensured).
It is pretty clear at the reading of the document that the patent lobby does not want any substantive patent law inside the European Union´s acquis, as that would probably reopen the door to discussions around software patents, since the material law would need to be recopied somewhere inside the acquis communautaire. Instead, the Commission seems to give some green light to have patent law outside of the corpus of the European Union, which means that the European Parliament won´t have any say in patent law.
Here is the complete "non-document" released by EPLAW in plain text format:
Solutions for a unified patent litigation system –
The way forward after the opinion 1/09 of the CJEU
Non-paper of the Commission services
Introduction
As set out in the Council conclusions of 7 December 2009, the future
unified patent system needs to be based on two pillars: the creation of
unitary patent protection and the setting up of a unified and specialised
patent jurisdiction. Both aspects need to come to a result at the same
time.
Work has progressed considerably on the creation of unitary patent
protection. On 10 March 2011, the Council authorised 25 Member States to
establish enhanced cooperation in the area of the creation of unitary
patent protection. On 13 April, the Commission presented two proposals for
regulations implementing the enhanced cooperation: one on the creation of
unitary patent protection, the other on the applicable translation
arrangements. The work in Council on these proposals started on 14 April in
the Mertens Group. The Hungarian Presidency has indicated that its
objective is to agree on a general approach on both regulations at the
Competitiveness Council on 30 May.
The work on the setting up of the unified patent jurisdiction led by
different Presidencies between 2007 and 2009 resulted in the draft
agreement on the European and EU Patents Court (EEUPC). The draft agreement
provided for the setting up of a unified patent court, the EEUPC,
consisting of a Court of First Instance (with local and central divisions)
and a Court of Appeal, with exclusive jurisdiction for both European
patents and EU patents (now: European patents with unitary effect). The
draft agreement was designed to be concluded by the Union, the Member
States and certain third states party to the European Patent Convention,
for instance Switzerland. On 6 July 2009 the Council, on the basis of
Article 218 (11) TFEU, requested the Court of Justice of the European Union
(CJEU) to give an opinion on whether the envisaged draft agreement was
compatible with the Treaties. Meanwhile, without prejudice to the pending
opinion of the CJEU, the Council adopted conclusions on the main features
of the EEUPC on 4 December 2009 (doc. 17229/09). The CJEU delivered its
opinion on 8 March 2011. It held that the draft agreement was, in its
current state, incompatible with the Treaties.
It was concluded at the last meeting of the Competitiveness Council on 10
March 2011 that it is important to resume work on the unified patent
litigation system quickly and to agree on the way forward following the
delivery of the opinion of the CJEU. The aim of this Commission services'
non-paper is to examine and outline a possible solution in the light of the
opinion of the CJEU.
The opinion 1/09 of the CJEU
The CJEU confirmed that entrusting jurisdiction to the CJEU by making use
of Article 262 TFEU is not the only option available for the creation of a
unified patent litigation system. It can therefore be deduced that a court
set up by Member States through an international agreement could be
compatible with the Treaty.
The concerns of the CJEU in its opinion 1/09 relate to the lack of
sufficient guarantees to ensure that the EEUPC will respect the primacy of
Union law and apply Union law in conformity with the interpretation of the
CJEU. The CJEU in particular focused on the risk that the EEUPC might
refrain from requesting a preliminary ruling from the CJEU, even in a case
where the proper interpretation of Union law would need to be decided on by
the CJEU, and pointed out that, unlike in the case of national courts,
infringement proceedings against the Member States would not be possible if
the EEUPC were to breach Union law. Further, such decisions of the EEUPC
could not give rise to any financial liability of the Member States.
The CJEU also observes that the Member States are obliged, by reason of
inter alia the principle of sincere cooperation (Article 4(3) TEU), to
ensure in their respective territories the application of and respect for
Union law. Its concern seems to relate in particular to the setting up of
an international court outside the framework of the EU Treaties with the
participation of third states. The CJEU considers that by the principle of
loyal cooperation Member States should ensure the respect of the primacy of
European Union law and the role of the CJEU as the ultimate interpreter of
Union law. The CJEU points out that national courts are obliged to request
preliminary rulings and, in collaboration with the CJEU, fulfil a duty
entrusted on them both of ensuring that in the interpretation and
application of the Treaties the law is observed. The CJEU and national
courts are in direct cooperation in the correct application and uniform
interpretation of Union law and in protection of individual rights
conferred by the Union legal order.
However, the CJEU distinguishes the envisaged EEUPC from that of the
Benelux Court of Justice. Indeed, the latter being a court common to a
number of Member States and, situated, consequently, within the judicial
system of the European Union, its decisions are subject to mechanisms
capable of ensuring the full effectiveness of the rules of the Union.
the suggested Solution
As a result of opinion 1/09 of the CJEU, it appears that the participation
of third countries must be excluded. The following options may therefore be
considered:
• conferral of exclusive jurisdiction on patent litigation upon the CJEU,
• the jurisdiction could rest with national courts which could deliver
judgments for the whole territory of the participating Member States,
as for the Community trademark, or
• conferral of exclusive jurisdiction upon an independent court to be
established by the Member States.
The first two options would appear not to meet the political requirements
of the Member States and the interests of the users of the patent system.
Member States have expressed in the past their opposition to the first
option, i.e. to confer jurisdiction on the CJEU. Moreover, this option
would not allow for the creation of a unified patent jurisdiction because
the CJEU may not be entrusted with the jurisdiction on disputes relating to
"classical" European patents. This is one of the reasons why the users of
the patent system are opposed to such a solution. This resulted clearly
from the Commission's consultation on the future patent policy in 2006 and
has ever since been confirmed by the users of the patent system on various
occasions. The second option, leaving the jurisdiction on the unitary
patent protection to national courts, as in the trade mark area, would most
likely not be acceptable to most Member States and industry, raising
concerns that the high quality of judgements and uniform interpretation
through judgments for the whole territory of the participating Member
States may not be achieved by making use of national courts, in particular
due to the lack of a common appeal instance. Strong opposition to such a
solution has continuously been voiced by the users of the patent system.
The only possible solution that has been identified is the conclusion of an
international agreement between the Member States to set up a unified
patent court with jurisdiction for the Member States only. The Member
States participating in the enhanced cooperation have signalled their
commitment to create a unified patent court; therefore they would have to
be party to the agreement creating such a jurisdiction. The Member States
who have decided not to take part in the enhanced cooperation may seek to
participate in the creation of the unified court for disputes related to
"classical" European patents valid on their territories. In the interest of
the users of the patent system and to reach an agreement as quickly as
possible, the results of the negotiations on the draft agreement on the
European and EU patent court should be preserved as far as possible;
amendments to the text should be made where necessary in particular in the
light of the opinion 1/09 of the CJEU.
On this basis, a future patent litigation system should rest on the
following pillars:
- A unified patent court set up by Member States. In the light of the
opinion 1/09 of the CJEU, such a unified patent court can only be set up by
the Member States; the participation of third states should be excluded.
The European Union would not be a party.
- Exclusive jurisdiction in respect of civil litigation related to
infringement and validity for both the "classical" European patents and the
European patents with unitary effect. The jurisdiction of the unified
patent court should comprise jurisdiction for both the "classical" European
patents as well as the European patents with unitary effect. Limiting the
jurisdiction of the specialised patent court to "classical" European
patents would render the unitary patent protection unattractive and may
even result in the unitary patent protection not being created, whereas
limiting the jurisdiction to the unitary patent protection could lead to
the establishment of two different common courts in the area of European
patents. Such duplication would not be reasonable, in particular given the
limited number of competent judges and the risk of contradictory judgments.
- The main features of the EEUPC should be maintained: The unified patent
court should also maintain the basic features of the EEUPC set out in the
Council conclusions of December 2009, including the setting up of the Court
with a Court of First instance (with local and central divisions), a Court
of Appeal and a Registry, the composition of the panels, the jurisdiction
in respect of actions and counterclaims for revocations, the rules on the
languages of proceedings and the transitional period. These features have
been developed in long and detailed discussions between the Member States:
they strike a fine balance between the different interests at stake,
represent a difficult but fair compromise and have also found broad support
from the users of the patent system.
- Guarantees to ensure the respect of Union law by the unified patent
court, fully situated within the judicial system of the Union: To ensure
conformity with the Treaty as set out in the opinion 1/09 of the CJEU, it
is necessary to ensure that the unified patent court respects Union law and
requests preliminary rulings in accordance with the conditions applicable
to national courts. It is also necessary to ensure that sanctions, in the
form of infringement proceedings and financial liability, can be imposed.
Considering that the unified patent court would be a court set up by Member
States only, it would seem possible for the Commission to start
infringement proceedings against all Member States jointly in cases where
the unified patent court violated Union law. Similarly, in such a case, the
rules on financial liability to make good damages caused to individuals as
a result of a breach of Union law also seem to be applicable to all Member
States jointly. Both aspects would nevertheless need to be clarified in the
agreement including where a Köbler claim could be brought (namely in a
forum where its full effectiveness is ensured).
The Member States would need to respect the acquis when establishing a
common patent court by way of an agreement. To the extent that amendments
to the acquis may be necessary, these would have to be adopted before such
an agreement could enter into force. It would appear that at least
Regulation (EC) No 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (Brussels I) might
need to be amended as its jurisdictional choices could otherwise be
interpreted as conflicting with such an agreement.
It is also worth noting that an agreement between Member States would not
bind EFTA states (nor obviously other third states), which might not
recognise its judgements within the framework of the Lugano Convention.
The compatibility with national (constitutional) law of granting the above-
mentioned competences to a court common to all (participating) Member
States established by an agreement between them remains to be addressed by
the Member States.
A possible Way Forward
The unified patent court could therefore be set up by an agreement to be
concluded between the Member States on the creation of a common
jurisdiction. As set out above, on the basis of the opinion of the CJEU,
third states may not participate in this agreement.
The work should continue on the basis of the Council conclusions of 7
December 2009 (doc. 17229/09) and the Working document on a revised
Presidency text on a draft Agreement on the European and EU Patents Court
and Draft Statute of 23 March 2009 (doc. 7928/09). Appropriate changes
should be introduced in a new Presidency text and submitted to the Member
States for discussion. These would need to include changes related to the
contracting parties, the necessary remedies and guarantees to ensure the
respect of Union law by the unified patent court. The basic institutional
architecture of the unified patent court as foreseen for the EEUPC and
agreed by the Council in 2009 (doc. 17229/09) should however be maintained.