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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.

ЗАговоры порча онлайн Чёрная магия

The Greek government does not seem to like "technical judges", which are patent attorneys with a small certification, but surely not any law degree:

Consequently, in so far as the judicial mechanism envisaged by the draft agreement provides for the participation, with voting rights, in the Patent Court (PC) of persons having a technical specialism who do not possess the skills required for the exercise of judicial functions, the requirements laid down by the Treaty as regards the settlement of disputes relating to the application of Community industrial property rights are not satisfied.

Notes of a secret hearing of Council delegations at the European Court of Justice (ECJ) that has been held last 18 May 2010 has been leaked on internet. See also Axel Horns´s blog post coverage. See also Jochen Padenberg (the first patent enforcement company of Germany) notes. The original proprietary file in DOCX format (hearing.docx) is published here (DOCX local copy) (PDF version). Local emphasises in bold are mine.

REPORT FOR THE HEARING

Table of contents
The request for an opinion I – 3

The Draft Agreement on the European and Community Patents Court I – 3

Provisions of the draft agreement I – 4

Assessments made by the Council in its request for an Opinion I – 6

Interventions before the Court I – 6

Observations to the effect that the request for an opinion is inadmissible I – 7

Observations to the effect that the draft agreement is incompatible with the Treaty I – 8

Observations to the effect that it is necessary to make amendments to the draft agreement in order to ensure its conformity with the Treaty I – 17

Observations to the effect that the draft agreement is compatible with the Treaty I – 18


(Draft Agreement creating a Unified Patent Litigation System (currently called the ‘European and Community Patents Court’) – Compatibility with the Treaty)

In Opinion 1/09,

REQUEST for an Opinion under Article 300(6) EC (now Article 218(11) TFEU) made on 9 July 2009 by the Council of the European Union, represented by J.-C. Piris, F. Florindo Gijón and G. Kimberley, acting as Agents,

after considering the observations submitted on behalf of:

the European Parliament, by E. Perillo, K. Bradley and M. Dean, acting as Agents,
the European Commission, by L. Romero Requeña, J.-P. Keppenne and H. Krämer, acting as Agents,
the Czech Government, by M. Smolek, acting as Agent,
the Danish Government, by V.P. Jørgensen and R. Holdgaard, acting as Agents,
the German Government, by M. Lumma, acting as Agent,
the Estonian Government, by L. Uibo, acting as Agent,
Ireland, by D.J. O’Hagan, acting as Agent, and by E. Fitzsimons, Senior Counsel, and N. Travers, Barrister,
the Greek Government, by K. Samoni, G. Alexaki and K. Boskovits, acting as Agents,
the Spanish Government, by N. Diaz Abad, acting as Agent,
the French Government, by E. Belliard, B. Beaupere-Manokha and G. de Bergues, acting as Agents,
the Italian Government, by G. Palmieri, acting as Agent,
the Cypriot Government, by V. Christoforou and M. Katzigeorgiou, acting as Agents,
the Lithuanian Government, by I. Jarukaitis, acting as Agent,
the Luxembourg Government, by C. Schiltz, acting as Agent,
the Netherlands Government, by C. Wissels and Y. de Vries, acting as Agents,
the Polish Government, by M. Dowgielewicz, acting as Agent,
the Portuguese Government, by L. Fernandez, J. Negrão and M.L. Duarte, acting as Agents,
the Romanian Government, by A. Popescu, acting as Agent, and by E. Gane and A. Stoia, consilieri,
the Slovenian Government, by V. Klemenc, acting as Agent,
the Finnish Government, by A. Guimaraes-Purokoski, acting as Agent,
the Swedish Government, by A. Falk, acting as Agent,
the United Kingdom Government, by I. Rao, acting as Agent, and by A. Dashwood, Barrister.
The request for an opinion

The request for an opinion submitted to the Court by the Council of the European Union is worded as follows:
‘Is the envisaged agreement creating a unified patent litigation system (currently named ‘European and Community Patents Court’) compatible with the provisions of the Treaty establishing the European Community?’

The Council forwarded to the Court, as annexes to its request,
Council document 8588/09 of 7 April 2009 on a revised proposal for a Council Regulation on the Community patent, drawn up by the Presidency of the Council for submission to the Working Party on Intellectual Property (Patents);
Council document 7928/09 of 23 March 2009 on a revised Presidency text of a Draft Agreement on the European and Community Patents Court and Draft Statute, the latter containing a number of institutional and financial provisions;
Council document 7927/09 of 23 March 2009 concerning a recommendation from the Commission to the Council to authorise the Commission to open negotiations for the adoption of an Agreement creating a Unified Patent Litigation System.
The Draft Agreement on the European and Community Patents Court

The European Patent Convention (hereinafter ‘the EPC’), signed at Munich on 5 October 1973, is a treaty to which 36 States, including all the Member States of the European Union, are today parties. That convention provides for a single procedure for the grant of European patents by the European Patent Office (hereinafter ‘the EPO’). Although there is a single procedure for the grant of that right, the European patent breaks down into an array of national patents, each governed by the domestic law of the States which the proprietor has designated.
In 2000, the discussions on a future Community patent were reopened by the European Council. On 5 July 2000, the Commission submitted a proposal for a Regulation on the Community patent, providing for Community accession to the EPC, the creation of a unitary industrial property right applicable to the Community in its entirety and the grant of that right by the EPO.
Following the conclusions of the Competitiveness Council of 4 December 2006, and of the European Council of 8 and 9 March 2007, the Commission presented to the European Parliament and the Council, on 3 April 2007, a communication entitled ‘Enhancing the patent system in Europe’.
Under Article 2 of the Revised Proposal for a Regulation on the Community Patent of 7 April 2009, the patent would be granted by the EPO under the provisions of the EPC. It would have a unitary and autonomous character, producing equal effect throughout the European Union, and could only be granted, transferred, declared invalid or lapse in respect of the whole of that territorial area. The provisions of the EPC would apply to the Community patent to the extent that the Regulation on the Community Patent does not provide for specific rules.
Within the preparatory bodies of the Council, a draft international agreement, to be concluded between the Member States, the European Union and the non-EU Member States of the EPO, was also drawn up, creating a court having jurisdiction in respect of litigation related to European and Community patents.
The proposed agreement would establish a European and Community Patents Court (hereinafter ‘the Patents Court’ or ‘PC’), composed of a court of first instance, comprising a central division and local and regional divisions, and a court of appeal. The third body of the PC would be a registry.
Provisions of the draft agreement

Article 14a of that draft provides:
‘Applicable law

1. When hearing a case brought before it under this Agreement, the [Patent] Court shall respect Community law and base its decisions on:

(a) this Agreement;

(b) directly applicable Community law, in particular Council Regulation … on the Community patent, and national law of the Contracting States implementing Community law …;

(c) the European Patent Convention and national law which has been adopted by the Contracting States in accordance with the European Patent Convention; and

(d) any provision of international agreements applicable to patents and binding on all the Contracting Parties.

2. To the extent that the Court shall base its decisions on national law of the Contracting States, the applicable law shall be determined:

(a) by directly applicable provisions of Community law, or

(b) in the absence of directly applicable provisions of Community law, by international instruments on private international law to which all Contracting Parties are parties; or

(c) in the absence of provisions referred to in (a) and (b), by national provisions on international private law as determined by the Court.

3. A Contracting State which is not a party to the Agreement on the European Economic Area shall bring into force the laws, regulations and administrative provisions necessary to comply with Community law relating to substantive patent law.’

Article 15 of the Draft Agreement is worded as follows:
‘Jurisdiction

1. The Court shall have exclusive jurisdiction in respect of:

(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;

(a1) actions for declarations of non-infringement;

(b) actions for provisional and protective measures and injunctions;

(c) actions or counterclaims for revocation of patents;

(d) actions for damages or compensation derived from the provisional protection conferred by a published patent application;

(e) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the patent;

(f) actions for the grant or revocation of compulsory licences in respect of Community patents; and

(g) actions on compensation for licences … .

2. The national courts of the Contracting States shall have jurisdiction in actions related to Community patents and European patents which do not come within the exclusive jurisdiction of the [Patent] Court.’

Article 48 of that draft states:
‘1. When a question of interpretation of the [EC] Treaty or the validity and interpretation of acts of the institutions of the European Community is raised before the Court of First Instance, it may, if it considers this necessary to enable it to give a decision, request the Court of Justice … to decide on the question. Where such question is raised before the Court of Appeal, it shall request the Court of Justice … to decide on the question.

2. The decision of the Court of Justice … on the interpretation of the [EC] Treaty or the validity and interpretation of acts of the institutions of the European Community shall be binding on the Court of First Instance and the Court of Appeal.’

Assessments made by the Council in its request for an Opinion

The Council states that ‘a majority of [its members] believe that the envisaged Agreement constitutes a legally possible way to achieve the envisaged aims. However, a number of legal concerns have been expressed and discussed …’. The Council points out that ‘the presentation of the various issues is intended to be neutral, making no reference to the degree of support received by the various approaches, and that the Council is taking side neither for one answer nor for the other’.
The Council notes that the proposed agreement does not change the essential character of the jurisdiction of the Court of Justice. In those circumstances, Member States should be able to organise the structure of the judicial system as they think fit, including by setting up a court which is international in nature.
The Council observes that the obligation for the PC to respect Community law is intended to have a very wide scope, since it covers not only the Treaty and acts of the institutions but also the general principles of the Community legal order and the case-law of the Court of Justice.
Interventions before the Court

Observations were submitted to the Court by the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland, the European Parliament and the European Commission.
The observations submitted argue one of the following: (i) that the request for an opinion is inadmissible or (ii) that the draft agreement is incompatible with the Treaty or (iii) that it is necessary to make amendments to the draft agreement in order to ensure its conformity with the Treaty or (iv) that the draft agreement is compatible with the Treaty.
The observations submitted to the Court refer to the provisions of the EU and EC Treaties which were applicable before the entry into force of the TEU and TFEU.
Observations to the effect that the request for an opinion is inadmissible

The Parliament argues that the working document submitted by the Council is ‘a non-legislative document of a kind which is not recognised by the Treaty’ and that, consequently, the Court cannot rely on that document in order to evaluate the legal context of the proposed agreement. It is ‘extremely difficult, if not impossible, properly to examine the compatibility with the Treaty of an agreement which is intended to establish a complex and highly-developed jurisdictional system’.
In those circumstances, the Parliament argues that the request for an opinion as submitted to the Court is ‘premature and incomplete, given the uncertainty surrounding the legal context in which the proposed Agreement is likely to operate and the fact that Parliament has never had the opportunity to examine even a first sketch of this text’.
The Spanish Government takes the view that the submission of the request for an opinion on the jurisdictional system for the Community patent is premature when the Community patent itself is only at an embryonic stage and there are numerous difficulties preventing the conclusion of the agreement in question. Consequently, the condition laid down by the case-law in order for the Court of Justice to be able to rule on a request for an opinion, requiring that the subject-matter of the proposed agreement be known, is not satisfied.
The Spanish Government adds that, in any event, the conclusion of the international agreement which is the subject-matter of these proceedings is subject to the condition precedent of the adoption of the Regulation on the Community patent.

Observations to the effect that the draft agreement is incompatible with the Treaty

The Greek Government doubts whether it is possible to circumvent Article 229a EC (now Article 262 TFEU) and choose the method of an international agreement in order to regulate the procedures for disputes concerning Community patents. That provision lays down the only appropriate way of conferring jurisdiction on the Court of Justice in disputes relating to Community industrial property rights. Even if it is considered that the adoption of an international agreement intended to create a unified judicial mechanism may be compatible with the Treaty, exclusion of the jurisdiction of the Court of Justice in such disputes is not consistent with that provision.
As regards the legal and technical training of the judges of the PC, the Greek Government submits that the rules laid down in that regard are not consistent with the corresponding requirements laid down by the Treaty in regard to the composition of the Community Courts. Even a proven knowledge of civil law and procedure does not, by itself, confer the competence required for the exercise of judicial functions. Consequently, in so far as the judicial mechanism envisaged by the draft agreement provides for the participation, with voting rights, in the PC of persons having a technical specialism who do not possess the skills required for the exercise of judicial functions, the requirements laid down by the Treaty as regards the settlement of disputes relating to the application of Community industrial property rights are not satisfied.
The Greek Government points out that, when international agreements are concluded, Member States are not free to limit the functioning and powers of the national courts which are responsible for safeguarding the rights arising from Community law. Consequently, apart from the question of exclusion or alteration of the powers of the Community Courts, Member States have an obligation not to organise the resolution of disputes relating to the interpretation and application of the Treaty in a way which excludes the jurisdiction of the national courts over Community industrial property rights.
The Greek Government notes that the disputes which will be brought before the PC are not international disputes to which the European Union and the Member States may be parties, but disputes relating to the enforcement of rights conferred on individuals in the internal market by Community industrial property rights. Exclusion of the jurisdiction both of the Community Courts and of the national courts in such disputes, which relate to the functioning of the internal market, is not justified.
In the alternative, the Greek Government points out that, even if it is considered that the Treaty does not preclude the settlement of such disputes from being entrusted, by means of an international agreement, to a court outside the judicial systems of the European Union and the Member States, such conferment of jurisdiction must take place in a manner which ensures the autonomy of the Community legal order and affords effective judicial protection of the rights conferred on individuals.
The Greek Government submits that the mechanisms provided for by the draft agreement do not place the PC in a similar position to that of the national courts. In the event of a breach or misapplication of Community law, the draft agreement does not provide for the necessary mechanisms and procedural remedies to enable individuals to secure effective protection of the rights which are associated with the application of Community patents. This applies both where the PC fails to apply Community law as interpreted by the Court of Justice, and where it fails to refer a question for a preliminary ruling.
In the opinion of the Greek Government, apart from the question of the need for a uniform interpretation of Community law, the draft agreement raises serious issues regarding the guarantee of effective protection for individuals which is equivalent, from the point of view of Community law, to that ensured by the national courts. The validity and application of the Community rights issued, which confer rights on individuals within the territory of the European Union, would depend on the decisions of judicial bodies sitting in non-member States. However, the validity of Community law, in this case of acts which are adopted on the basis of the Treaty and which confer rights within the territory of the European Union, cannot depend on the decisions of such third-country judicial bodies which operate outside the territorial scope of the Community acts in question.
The Greek Government adds that the geographical location of courts sitting in non-member States is of decisive importance, in particular as regards the application of intellectual property rights which are governed by the fundamental principle of territoriality. Consequently, preservation of the autonomy of Community law requires that the validity and effects of patents applying within the European Union do not depend on courts sitting in non-member States.
The Greek Government further points out that the conferment of jurisdiction on the Court of Justice to give preliminary rulings on questions of interpretation does not resolve the issue of the autonomy of Community law from the point of view of the validity of Community industrial property rights. The validity and application of those rights within the territory of the European Union would depend at first instance, including interim measures, on the decisions of courts sitting outside the European Union.
Finally, the Greek Government observes that Articles 220 EC and 292 EC (now, respectively, Articles 19 TEU and 344 TFEU) lay down a binding framework within which the Community institutions and the Member States must act when they choose both the general method and the specific provisions relating to the settlement of disputes concerning Community industrial property rights.
Ireland has ‘serious doubts’, at least in the present state of development of Community law in the field of patents, as to whether the European Union has competence to conclude jointly with the Member States an agreement such as that envisaged. Moreover, it is not certain that there is any legal basis upon which such an agreement could be concluded.
Given that the draft Regulation on the Community patent has not yet been approved and that no instrument seeking to establish a litigation system internal to the European Union for private-party disputes concerning Community patents has been adopted, Ireland believes it to be premature to determine that the European Union has joint competence with its Member States to conclude the proposed agreement.
Ireland points out that, even if the European Union did in principle have such competence, that competence would not be exclusive. Neither Article 308 EC (now Article 352 TFEU) nor Article 229a EC (now Article 262 TFEU) provides a legal basis, either separately or jointly, for the adoption of the proposed agreement. Since there is no other legal basis, at least in the present state of development of Community law, the European Union lacks the competence to conclude the proposed agreement.
Ireland doubts that the possibility for the PC to refer questions to the Court of Justice for a preliminary ruling can be considered as constituting a form of exercise of the optional power provided for in Article 229a EC (now Article 262 TFEU). Measures adopted by the Council under that provision cannot be in the form of an international agreement with third countries, and/or with an international organisation such as the EPO as envisaged in the draft agreement, but, rather, must be in the form of an act of the Council itself.
In the opinion of Ireland, Article 229a EC (now Article 262 TFEU) does not permit the Council to adopt provisions conferring jurisdiction in the form of an international agreement. That is a fortiori the case where there is no guarantee that the measures thereby agreed upon with third countries and/or international organisations would be capable of being adopted by all the Member States in accordance with their respective constitutional requirements.
As regards the legal basis set out in Article 308 EC (now Article 352 TFEU), Ireland maintains that the creation of a unified patent litigation system cannot be considered to be an objective of the European Union. Nor has it been demonstrated that the effective functioning of the common market requires the conclusion of an agreement on the PC.
In the alternative, if it is considered that the European Union has competence to conclude such an agreement jointly with the Member States, Ireland expresses doubts as to whether the conclusion of an agreement like that envisaged would be compatible with the Treaties. The agreement could undermine the autonomy and effectiveness of the Community legal order, which affects not only the Community judicature but also the national courts as Community courts of general jurisdiction. The agreement would significantly change the Community legal order by depriving national courts of the jurisdiction that they would otherwise enjoy to hear and determine the various important types of private-party actions in the field of patents and, where appropriate, to make references to the Court of Justice for preliminary rulings on questions of law in that field.
Ireland points out that national courts would be required to enforce the decisions of the PC on the basis of orders made by the latter, without even the need for the party seeking enforcement to obtain a declaration of enforceability. Such a system, which would go much further than the provisions for the enforcement in national courts of judgments of the Community judicature, would fundamentally alter the essential character of the relationship between the Court of Justice and national courts.
In Ireland’s submission, it is unclear whether the PC would be obliged to consider Community law which is not directly applicable. No hierarchy is specified regarding the rules of law upon which the decisions of the PC would be based. There is no guarantee that the primacy of provisions of Community law which may arise in the disputes that come before the PC will be fully respected. Nor is there a guarantee that the PC would be subject to an interpretative obligation to avoid, as would a national court, to the maximum extent possible, clashes between the provisions of Community law that it applies and the other national or international legal provisions that it would be called upon to apply.
The Spanish Government, in the alternative, argues that the draft agreement is incompatible with the Treaty.
The Spanish Government points out that conferring on a judicial body other than the Community Courts jurisdiction to hear and determine disputes arising in connection with the Community patent is contrary to Articles 220 EC and 292 EC (now, respectively, Articles 19 TEU and 344 TFEU). The Treaty does not provide for the possibility of an external actor, such as the PC would be, being allowed access to such a system.
The Spanish Government notes that, under the proposed agreement, the judicial treatment of a Community patent is subject to an international court, thereby removing such cases from the jurisdiction of the Court of Justice, given that the PC will have exclusive jurisdiction to hear and determine actions for infringements of Community patents, counterclaims and other actions.
The Spanish Government submits that the draft agreement is such as to undermine the monopoly of jurisdiction enjoyed by the Court of Justice to hear and determine disputes in matters relating to Community law. Even though it is true that Community patents will be granted by a body such as the EPO, that nevertheless does not mean that this is not a Community act in so far as the EPO acts on behalf of the European Union.
The Spanish Government points out that, within the structure of the Treaty, the Court of Justice is required to ensure that in the interpretation and application of the Treaty the law is observed. However, the proposed agreement transfers that function to another court of an international nature, the Court of Justice retaining only a residual jurisdiction through the preliminary ruling procedure provided for in Article 48 of the draft agreement.
The Spanish Government maintains that the questions of Community law at issue here are excluded from referral to the Court of Justice. The essential character of the latter’s functions would then be changed, in so far as, by altering the system of jurisdiction under which it is for the Court of Justice to hear and determine disputes relating to acts subject to Community law, the autonomy of the Community legal system guaranteed by the Treaty is undermined.
As regards Article 229a EC (now Article 262 TFEU), the Spanish Government points out that the Treaty does not permit the existing judicial system to be changed in order to permit access by any actor other than those which make up the Community system. Jurisdiction to hear and determine disputes concerning Community patents lies exclusively with the Community judicial structure, to which the courts of the Member States belong.
The Spanish Government observes that, through the conferment on the PC of jurisdiction to decide this category of cases, the Court of Justice is deprived of exclusive jurisdiction in disputes relating to Community industrial property rights, so that the essential character of the function of the Court of Justice, which is to ensure the uniform application of Community law, is altered.
The Spanish Government also submits that the proposed agreement is contrary to the existing judicial system under which jurisdiction to interpret and apply Community law lies with the national courts, in so far as they act as courts of Community law, and with the Court of Justice. The European Union is not authorised to change that system, nor can the Member States confer judicial powers outside of what is established by the Treaty except by means of an amendment to the latter.
The Spanish Government is of the opinion that the proposed system does not guarantee the primacy of Community law, given that the PC is an international court which, consequently, is outside the judicial structure of any Member State, and any infringements of Community law committed by such a court would therefore not be subject to any type of sanction.
The Spanish Government points out that, to the extent that the courts in question are not courts of the Member States, they cannot be held financially liable in the event of failure to comply with the obligation to make a reference for a preliminary ruling. Consequently, the uniformity in the interpretation and application of Community law is compromised. In addition, the principle of the primacy of that law and the rights of individuals, in particular their right to effective judicial protection, are infringed. Furthermore, in the event of breach by the PC of Community law, there is no possibility of an appeal on a point of law, which renders the power of review conferred on the Court of Justice incomplete.
As regards the preliminary ruling mechanism provided for in Article 48 of the draft agreement, the Spanish Government contends that the questions at issue here relate to Community matters in disputes which should be submitted to the Court of Justice itself and in respect of which the PC will nevertheless have jurisdiction. Conferment of jurisdiction in favour of that international court would therefore alter the essential character of the jurisdiction conferred on the Court of Justice by the Treaty.

The Lithuanian Government explains that the Treaty does not contemplate permitting the European Union to take action in the field of litigation concerning industrial property rights.
The Lithuanian Government notes that Article 225a EC (now Article 257 TFEU) mentions the creation of a specialised Community court, but not of an international judicial body. That provision is not an appropriate basis for the proposed agreement. Moreover, nor can Article 229a EC (now Article 262 TFEU), on its own or in conjunction with other Treaty provisions, be the legal basis for concluding that agreement.
The Lithuanian Government points out that the proposed agreement covers both legal proceedings relating to the Community patent and those relating to the European patent. By virtue of the fact that Article 229a EC (now Article 262 TFEU) expressly mentions disputes relating to Community industrial property rights, there is room for doubt as to whether that provision can constitute a legal basis for conferring power to hear and determine both disputes relating to the European patent and those relating to national patents.
The Lithuanian Government observes that judicial review of the Community patent will not even be entrusted to the Court of Justice, but to another court which does not act within the framework of the Treaty. Jurisdiction in the field of Community industrial property rights can be conferred, under Article 229a EC (now Article 262 TFEU), only on the Court of Justice, not on another court, and especially not on a court not belonging to the European Union.
With regard to Article 308 EC (now Article 352 TFEU), the Lithuanian Government states that the creation of a litigation system in the field of Community patents and concerning disputes related to those patents pertains to the operation of the common market, which is in itself one of the fundamental objectives of the European Union. However, there must be doubt as to the need for an international agreement which creates an international court responsible for examining disputes arising from Community patents.
The Lithuanian Government submits that the mechanism provided for in Article 48 of the draft agreement does not constitute a sufficient guarantee for the autonomy of the Community legal order. The possibility that the PC could develop its own doctrine and conditions for making references to the Court of Justice cannot be discounted. In those circumstances, it is not certain that the Court of Justice could retain its power to give definitive rulings on the interpretation of Community law.
The Lithuanian Government is therefore of the opinion that the agreement does not sufficiently ensure that the PC will submit requests for preliminary rulings to the Court of Justice and comply with that Court’s judgments given in response to such requests. Consequently, both the autonomy of Community law and its unity would be affected. The role of the Court of Justice in the development of Community law could be reduced due to the fact that the proposed agreement does not provide for any other instrument serving to guarantee or maintain the jurisdiction of the Court of Justice in the interpretation of Community law.
The Lithuanian Government adds that, owing to its specific scope, the possibility of the PC’s case-law exerting an influence on the sharing of competences between the European Union and its Member States and on the autonomy of the Community legal order cannot be excluded.
The Luxembourg Government submits that the Treaty does not provide any legal basis for transferring jurisdiction such as that envisaged by the draft agreement to a court such as the PC. In addition, the provisions of Community law and the case-law of the Court of Justice preclude the creation of such a court, since they require that the jurisdiction which the proposed agreement plans to confer on the PC can be exercised only by the Court of Justice itself.
The Luxembourg Government points out that Article 308 EC (now Article 352 TFEU) cannot be adopted as a legal basis, since Article 229a EC (now Article 262 TFEU) precludes application of the first provision in this case.
The Luxembourg Government submits that the framers of the Treaty intended to establish a monopoly for the Court of Justice in the settlement of disputes relating to Community industrial property rights. Consequently, Article 229a EC (now Article 262 TFEU) creates an obligation to submit that category of disputes to the Court of Justice.
The Luxembourg Government further submits that the wording of Article 229a EC (now Article 262 TFEU) precludes recourse to the proposed preliminary ruling mechanism. In addition, the creation of the PC is incompatible with the principles of the primacy, autonomy and uniformity of the Community legal order and its judicial system.
The Luxembourg Government explains that Article 292 EC (now Article 344 TFEU) enshrines the jurisdictional monopoly of the Court of Justice in resolving disputes between Member States concerning the interpretation and application of the Treaty. The purpose of that provision is to ensure the uniform interpretation and application of Community law. By adjudicating on the validity of Community patents, the PC would be ruling, directly or indirectly, on matters which fall within the competences of the European Union. The prohibition on submitting disputes to any other method of settlement also applies to judicial or arbitral bodies such as the PC.
The Luxembourg Government contends that extension of the benefit of preliminary ruling proceedings to courts of States which are not members of the European Union is incompatible with the integrity and autonomy of the Community legal order and, in particular, with the mechanism established by Article 234 EC (now Article 267 TFEU). Moreover, the PC, as envisaged by the draft agreement, cannot be regarded as a court of a State.
The Italian Government points out that the European Union is not authorised to legislate with regard to the European patent, because the latter was established by an international agreement and it is only when the European Union accedes to the EPC that it will be able to participate, together with the other Contracting States, in the preparation of the additions and amendments to be made to the Convention.
The Italian Government states that the PC acts as a Community court in respect of disputes relating to the Community patent and as an international court in respect of disputes relating to the European patent. So far as concerns disputes relating to the Community patent, the mixed agreement at issue should be described as an agreement on a Community court.
The Italian Government submits that Article 308 EC (now Article 352 TFEU) cannot serve as a legal basis for the conclusion of the agreement in question. The court governed by the future agreement cannot be described as a Community judicial body, given that Articles 200 EC, 225a EC and 229a EC (now, respectively, Articles 19 TEU, 257 TFEU and 262 TFEU) preclude such a description.
The Italian Government notes that Article 308 EC (now Article 352 TFEU), since it forms an integral part of an institutional system based on the principle of conferred powers, cannot constitute a basis for widening the sphere of competence of the European Union beyond the general framework resulting from the body of Treaty provisions, and in particular from those which define the tasks and activities of the European Union. In any event, it cannot serve as a basis for the adoption of provisions which would lead, in essence, in terms of their consequences, to an amendment of the Treaty by means other than the procedure which the Treaty lays down for that purpose.
In the opinion of the Italian Government, in so far as it aims to create a single court for both the Community patent and the European patent and will be concluded between the European Union and the Contracting States to the EPC, the draft agreement on the PC falls outside the Community’s competences, since the European patent is not governed by Community rules.
The Italian Government observes that the creation of a specific mechanism for the judicial protection of industrial property rights means that the conferment of such jurisdiction on the Community judicature requires a specific procedure in accordance with Article 229a EC (now Article 262 TFEU). However, the draft agreement cannot be described as a draft Council legislative act. As the law currently stands, the European Union cannot therefore transfer its judicial powers in the field under consideration to an international court.
The Cypriot Government takes the view that the proposed agreement falls within the exclusive competence of the European Union in the sphere of the common commercial policy. Consequently, the proposed agreement cannot be concluded in the form of a mixed agreement between the European Union, the Member States and certain non-member States.
The Cypriot Government submits that the creation of the PC as a unified court having exclusive jurisdiction in respect of actions for infringement, actions for revocation and counterclaims relating both to European patents and to Community patents, and in respect of actions for damages and other, related actions concerning them goes against the exclusive jurisdictions of the Court of Justice and the Court of First Instance.
The Cypriot Government maintains that it is inconceivable for the disputes in question to be submitted to an international court such as the PC. On the contrary, the authorisation contained in Article 229a EC (now Article 262 TFEU) demonstrates the intention of the European Union to entrust the Community judicial system with the task of guaranteeing the protection of rights arising from the substantive rules on intellectual property rights. The fact that, to date, common rules have not yet been adopted at Community level concerning the conditions and procedure for acquiring such rights is irrelevant in that regard.
Consequently, in the opinion of the Cypriot Government, at least as regards the resolution of disputes between individuals which concern issues relating either to the existence of Community industrial property rights or to the scope of the rights created by them, the Court of Justice and the Court of First Instance should be regarded as having exclusive jurisdiction.
Observations to the effect that it is necessary to make amendments to the draft agreement in order to ensure its conformity with the Treaty

Should the Court hold the Council’s request to be admissible, the Parliament submits that, in order to avoid any ambiguity as regards the obligation for the PC to respect Community law, it would be preferable expressly to indicate in the text of the agreement itself the wide scope which that obligation is intended to have, and to specify that the duty to respect the Court’s case-law includes future judgments as well as those which will have been handed down before the proposed agreement is concluded. It would also be appropriate to clarify that the PC is required to ensure the protection of fundamental rights, as neither the European Union nor the Member States can rely on an international agreement to dispense itself or themselves from complying with higher-ranking Community law.
So far as concerns the proposed preliminary ruling mechanism, the Parliament observes that, in order to reduce the risk of the PC’s failing to comply with the obligation to make references, it would be appropriate to strengthen that obligation and to introduce a mechanism whereby the Commission could intervene in proceedings before the PC in order to be able to provide information and guidance to that court in matters of Community law. It might also be helpful to provide for an express obligation on the PC to refer questions of validity of Community law provisions to the Court of Justice.
The Commission wonders whether the proposed agreement should include express provision for it to be denounced, at any time, not only by non-member States, as the current text provides, but also by the European Union and by the Member States. In that way, the fact that entry into force of the proposed agreement renders recourse to Article 229a EC (now Article 262 TFEU) impossible in respect of disputes relating to the Community patent would be reversible.
The French Government observes that no mechanism sufficiently guarantees compliance by the court of appeal with the obligation to make references for preliminary rulings to the Court of Justice and, more broadly, to respect Community law. In those circumstances, although conferment on the Court of Justice of jurisdiction to give preliminary rulings appears necessary in order to ensure the primacy of Community law, it nevertheless does not seem to be sufficient.
The French Government therefore submits that the preliminary ruling system provided for by the proposed agreement should be supplemented by a mechanism available to the parties and/or, where appropriate, to the Member States and to the Commission, in order to guarantee compliance with Community law by the PC. One of the possible mechanisms would consist in permitting parties to bring before the Court of Justice applications for review, limited to points of law, directed against judgments of the court of appeal.
The French Government contends that conferment of jurisdiction on the Court of Justice to set aside judgments, so far as the European patent is concerned, would fall, at least potentially, within the scope of the jurisdiction which the Court already has. The conferment of jurisdiction on the Court to set aside judgments in respect of the Community patent would strengthen the protection of the primacy of Community law, while not altering the essential character of the Court’s jurisdiction. Such conferment would also have the advantage of making the court of appeal subject to review by a court with general jurisdiction.
In the French Government’s opinion, it is possible to envisage other mechanisms for the purpose of guaranteeing respect for that primacy. Thus, the creation of an appeal in the interest of the law, at the initiative of the Commission or of a Member State, could be envisaged. The creation of a procedure for review by the Court of Justice of judgments of the court of appeal, in the event of serious risk of impairment of the unity or consistency of Community law, could equally be envisaged.
Observations to the effect that the draft agreement is compatible with the Treaty

The Czech Government observes that the agreement should be concluded by the Member States and the European Union, that is to say as a ‘mixed’ agreement.
The Czech Government notes that no provision of Community law expressly establishes European Union competence to create a judicial body responsible for adjudicating on patent disputes, nor can that competence be inferred from the provisions of the Treaty or from secondary legislation. Article 65 EC (now Article 81 TFEU) cannot be the legal basis for the negotiation of the agreement, given that it concerns only cooperation between the internal authorities of the Member States of the European Union. The scope of that provision cannot be extended beyond that context and the creation of an independent supranational institution cannot be based on that provision.
The Czech Government maintains that, although there is no express or implied European Union competence for the creation of the PC, the establishment of a unified patents court is essential to ensure the proper functioning of the common market which is at present affected by the divergent decisions adopted by the national courts in patent litigation.
The Czech Government points out that an international agreement cannot be negotiated on the basis of Article 308 EC (now Article 352 TFEU) unless comprehensive intra-Community rules exist for the field governed by the agreement, or unless such rules are adopted, at the latest, at the same time as the agreement negotiated. The Regulation on the Community patent would fulfil that condition if it was adopted, at the latest, at the same time as the agreement.
In the opinion of the Czech Government, in addition to Article 308 EC (now Article 352 TFEU), Article 229a EC (now Article 262 TFEU) also constitutes the legal basis for the conclusion of the agreement in so far as it concerns the field of intellectual property.
The Czech Government points out that it is likely that, apart from the Regulation on the Community patent, the PC, when adjudicating on disputes related to European patents, will also be called upon to interpret and apply other Community provisions which may affect or govern the subject-matter of the litigation. The proposed agreement does not in any way alter the essential character of the competences of the European Union and its institutions, as they are conceived in the Treaty. Nor does the proposed agreement have any bearing on the division of competences between the European Union and its Member States.
The Czech Government points out that the PC will not be a court which will adjudicate on disputes between the Contracting Parties, but will rule exclusively on private legal relations which are connected with the implementation of patents. The proposed agreement is therefore not incompatible with Article 292 EC (now Article 344 TFEU).
The Czech Government submits that the proposed preliminary ruling mechanism is a procedure similar to that provided for in Article 234 EC (now Article 267 TFEU), and that it constitutes a means of ensuring both the primacy and autonomy of Community law and the power of review of the Court of Justice over the interpretation of Community law. Moreover, Article 14a of the proposed agreement requires the PC to comply with the provisions of Community law.
The Danish Government makes the preliminary point that the procedure provided for in Article 300(6) EC (now Article 218(11) TFEU) is not intended to resolve the practical difficulties relating to the implementation of a mixed agreement.
The Danish Government submits that no provision of the Treaty expressly confers on the European Union competence to conclude all or part of the proposed agreement, but that the provisions of the Treaty, including those of Articles 65 EC and 95 EC (now, respectively, Articles 81 and 114 TFEU), confer an internal and implied competence in order to be able to conclude certain parts of the agreement.
In the opinion of the Danish Government, Article 229a EC (now Article 262 TFEU) is not a suitable legal basis for the conclusion of the proposed agreement. The powers conferred on the Court of Justice are not new powers and, consequently, do not in themselves constitute an objective of the agreement. The powers of the Court of Justice provided for by that agreement are, by contrast, a mere consequence of the need to maintain the autonomy of Community law in the context of the transfer to an international court of jurisdiction over the Community patent. Consequently, certain parts of the proposed agreement fall within the competence of the European Union, so that the latter must be able to become a party to that agreement.
The Danish Government submits that it is not in itself incompatible with the uniform application of Community law for the Member States to be parties to an agreement concluded with non-member States for the purposes of judicial cooperation in civil matters and of improved legal certainty in a given field of law, whether or not that field is in fact governed by Community rules.
The Danish Government maintains that the establishment of a new international court which would have the task of applying Community rules does not, in itself, have any effect on those rules. The fact that the PC’s judgments must comply with Community law and be recognised by the courts of the Member States does not mean that the creation of the PC affects the rules of Community law which that court is required to apply.
The Danish Government observes that Article 229a EC (now Article 262 TFEU) cannot be interpreted as conferring on the European Union exclusive competence with regard to the establishment of a mechanism for the resolution of disputes relating to Community patents. That provision therefore does not preclude the Member States from concluding, jointly with the European Union, agreements with non-member States for the purpose of enforcing more effectively the rules on Community patents.
The Danish Government further points out that, regardless of the fact that the European Union and the Member States are competent to conclude the proposed agreement as a mixed agreement, its provisions do not infringe those of the Treaty or the fundamental principles of Community law, in particular that of the autonomy of the Community legal order.
The Danish Government points out that it is only when the competences of the institutions are liable to be ‘altered in their essential character’ following the conclusion of an international agreement that that agreement is incompatible with the principle of the autonomy of the Community legal order. Nor does the proposed agreement infringe the exclusive jurisdiction of the Court of Justice under Article 292 EC (now Article 344 TFEU). The exclusive jurisdiction of the PC in intellectual property disputes falls outside the scope of any right or power conferred on the Court of Justice. The Community legal order does not preclude the European Union and the Member States from transferring to other courts the power to give decisions in disputes between private individuals relating to the application of Community law.
Should the Court hold that Community patents granted by the EPO must be regarded as being Community acts and as forming an integral part of the Community legal order, the Danish Government submits that it is possible to confer jurisdiction on the PC to determine the validity of those legal acts. The Court of Justice does not have exclusive jurisdiction to decide whether the conditions for validity laid down by that international agreement are satisfied.
The Danish Government points out that Article 229a EC (now Article 262 TFEU) does not require the European Union and the Member States to refrain from creating courts other than that envisaged by that provision. The Council is therefore free to decide whether and, where appropriate, to what extent the competence envisaged by that provision should be used.
With regard to the preliminary ruling mechanism provided for, the Danish Government observes that, in the situations in which jurisdiction is conferred on the Court of Justice to answer questions referred by the PC for a preliminary ruling, the Court’s decisions are binding. Consequently, the functions exercised by the Court under Articles 220 EC and 234 EC (now, respectively, Articles 19 TEU and 267 TFEU) are not altered in their essential character. In addition, the system envisaged does not in any way have the effect of imposing on the European Union and the Member States a particular interpretation of the rules of Community law and it does not infringe the principle of the primacy or effectiveness of Community law either.
The Danish Government notes that there is nothing in the proposed agreement which permits the European Union and the Member States to avoid their responsibilities should the PC act in breach of Community law. Both the European Union and the Member States are liable, whenever they confer a power on a body established by international agreement, for that body’s failure to comply with Community law in the exercise of that power. The question of who must answer for the failure of an international organisation to comply with Community law in a specific case should be resolved on the basis of the circumstances of the particular case and the development of Community law.
The German Government submits that the proposed agreement is capable of being concluded on the basis of Article 308 EC (now Article 352 TFEU). By contrast, Article 229a EC (now Article 262 TFEU) cannot serve as a legal basis, since that provision is not intended to confer jurisdiction on the Court of Justice in patent disputes.
The German Government is of the opinion that neither Article 133 EC (now Article 207 TFEU), nor Article 95 EC (now Article 114 TFEU) in conjunction with Directive 2004/48/EC of the Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, constitutes a sufficient legal basis to permit the conclusion of the proposed agreement.
The German Government argues that neither Article 229a EC (now Article 262 TFEU) nor the primacy of Community law precludes the creation of a unified patents court as a judicial system placed outside the judicial systems of the European Union and the Member States. The enumeration of actions in the Treaty does not provide for any jurisdiction for the Community Courts in patent disputes between individuals.
The German Government infers from this that it is, in principle, open to Member States, when designating courts with jurisdiction, to confer the relevant jurisdiction on a court created by international agreement, provided that the jurisdiction conferred on the Court of Justice is not undermined. Article 229a (now Article 262 TFEU) involves only a power to confer the jurisdiction referred to on the Community Courts by means of a simplified revision of the Treaty.
The German Government also submits that the system of judicial review provided for by the proposed agreement preserves the autonomy of the Community legal order. The unified patent litigation system envisaged does not alter the essential character of the competences of the European Union and its institutions, as they are conceived in the Treaty. Moreover, the proposed agreement avoids the imposition on the European Union and its institutions of a particular interpretation of the rules of Community law incorporated in that agreement.
The German Government points out that the obligation on the PC to comply with Community law is binding and formulated broadly, covering not only the written provisions of primary and secondary legislation and the general principles of Community law, but also the case-law of the Court of Justice. In the same way, that obligation encompasses the acquis communautaire predating the entry into force of the agreement, while also applying to all subsequent developments of Community law, including the judgments given by the Court of Justice.
The German Government also points out that Article 48 of the draft agreement does not give the Contracting States any latitude as regards references made by the PC for preliminary rulings. The fact that local or regional divisions of the PC may be located in a non-member State is irrelevant in that regard.
The Estonian Government contends that the Treaty does not confer direct competence on the European Union to regulate the field of patents. However, since the conclusion of the proposed agreement contributes to the strengthening of patent protection in the internal market, it would encourage the marketing without frontiers of goods, thereby contributing directly to the development of economic activity, to the objectives relating to competitiveness and to the achievement of the objective of an internal market based on the fundamental freedoms.
In the Estonian Government’s submission, given that many of the provisions of the proposed agreement fall within the sphere of competence of the Member States, the proposed agreement must be concluded as a ‘mixed’ agreement. Given that the Treaty does not contain any legal basis giving competence to the European Union to conclude an agreement concerning patent litigation, it is necessary to apply, in this case, Article 308 EC (now Article 352 TFEU) as the legal basis.
In that regard, the Estonian Government submits that this is not a situation in which the use of Article 308 EC (now Article 352 TFEU) would lead to a widening of the sphere of competences of the European Union beyond the general framework resulting from the body of Treaty provisions, and in particular from those which define the tasks and activities of the European Union. Consequently, Article 308 EC (now Article 352 TFEU) could, in this instance, be used for the exercise of an external competence, even if the European Union’s internal competence has not yet been exercised.
The Estonian Government takes the view that the draft agreement does not affect the division of competences laid down in the Treaty, given that the PC does not have jurisdiction in disputes between the Member States or between the Member States and the institutions. Consequently, there is no conflict with Article 292 EC (now Article 344 TFEU).
The Estonian Government points out that the proposed agreement makes sufficient provision for measures ensuring the uniform application of Community law. In particular, the PC is required to comply with Community law and to base its decisions on the case-law of the Court of Justice.
In the view of the Estonian Government, the fact that a first-instance division of the PC will be able and the court of appeal will be obliged to refer to the Court of Justice on questions relating to the interpretation of Community law is sufficient to ensure the uniform application of Community law. In addition, the interpretation given by the Court of Justice is binding on the court which submitted the question for a preliminary ruling.
Nor does the Estonian Government see how the proposed agreement is contrary to the requirement arising from Article 292 EC (now Article 344 TFEU).
So far as concerns Article 229a EC (now Article 262 TFEU), the Estonian Government states that, at the present time, the Court of Justice does not have exclusive jurisdiction in the field of patents. Even on the assumption that the Regulation on the Community patent is adopted, it is for the Council to decide, by separate legal acts, whether and to what extent it wishes to give jurisdiction to the Court of Justice in litigation relating to such patents.
The Estonian Government points out that the role to be given to the Court of Justice by the proposed agreement enables it to ensure that the law is observed in the interpretation and application of the Treaty. The assignment of such a function should not be regarded as altering the essential character of the Court’s jurisdiction, given that the role of the Court in the preliminary ruling procedure in fact remains the same as in the context of the application of Article 234 EC (now Article 267 TFEU). The Court’s preliminary rulings are binding on the referring courts, which satisfies the requirements laid down by the Court in order to ensure the autonomy of the Community legal order.
The French Government is of the opinion that competence to conclude the proposed agreement is shared between the Council and the Member States. So far as concerns the European patent, competence to create an international court having jurisdiction in disputes which currently fall within the jurisdiction of the national courts lies mainly with the Member States. As to the future Community patent, competence to conclude the proposed agreement is shared between the European Union and the Member States. While the common rules relating to the Community patent fall within the competence of the European Union, the organisation of the judicial system responsible for adjudicating on disputes relating to it falls, for its part, within the competence of the Member States.
The French Government points out that, since the Council has not exercised the power referred to in Article 229a EC (now Article 262 TFEU), the Member States remain competent to organise the judicial system for the Community patent, including transferring to an international court the functions which at present lie with the national courts. However, the Member States must ensure that such an international court will observe the primacy of Community law.
In the opinion of the French Government, the creation of an international court does not constitute a circumvention of Article 229a EC (now Article 262 TFEU). Although that provision gives the Council the power to confer jurisdiction, to the extent that it determines, on the Court of Justice in disputes relating to the application of acts which create Community industrial property rights, it does not in any way oblige it to confer such jurisdiction.
The French Government submits that the conferment of jurisdiction on the PC to invalidate Community patents is not contrary to the monopoly of the Court of Justice. The Community patent as an industrial property right does not, for that reason, constitute a Community act. Consequently, by providing that the Council may adopt provisions to confer jurisdiction on the Court of Justice in disputes relating to the application of acts which create Community industrial property rights, Article 229a EC (now Article 262 TFEU) distinguishes between, on the one hand, the acts which create such rights and, on the other, those rights themselves.
The French Government argues that the PC cannot be regarded as a court common to the Member States. However, Community law does not preclude the Court of Justice from having jurisdiction conferred on it, by an international agreement concluded by the European Union, to answer questions referred for a preliminary ruling concerning the validity or interpretation of Community law which are submitted to it by an international court, provided that the answers which it gives are binding. Consequently, the conferment by the proposed agreement of jurisdiction on the Court of Justice to give preliminary rulings does not alter the essential character of the Court’s powers and is therefore compatible with Community law.
The Netherlands Government states that the European Union has a competence available to it enabling it to conclude treaties relating to intellectual property rights and to the settlement of disputes in that field, such as the proposed agreement, in so far as it has exercised its internal competences. However, in the field in question, the European Union has exercised its internal competences to only a limited extent. It therefore follows that the law of intellectual property still falls partly within the Member States’ competences. Consequently, the proposed agreement can only be a mixed agreement.
The Netherlands Government is of the opinion that Article 229a EC (now Article 262 TFEU) does not preclude the agreement. That provision applies without prejudice to the other provisions of the Treaty. The Council’s competence to adopt such provisions is in any event discretionary.
The Netherlands Government submits that the Community legislature has considerable latitude in choosing to exercise that power and also in determining to what extent the Court of Justice can have jurisdiction in disputes relating to Community industrial property rights. The conferring of such jurisdiction on the Court presupposes the existence of such rights. Consequently, Article 229a EC (now Article 262 TFEU) does not constitute a basis for the conclusion of the agreement, but nor does it preclude it.
In the submission of the Netherlands Government, Article 308 EC (now Article 352 TFEU) is the only appropriate legal basis, since the Treaty does not currently provide any specific legal basis permitting the creation of a Community patent or any other intellectual property right and a uniform litigation system applicable both to European patents and to Community patents.
Finally, the Netherlands Government submits that the agreement does not undermine the unity and integrity of Community law. Nor does the agreement modify the system of legal protection and judicial review exercised by the national and Community courts, as provided for by the Treaty. The agreement contains various provisions which guarantee the primacy of Community law, including that of the case-law of the Court of Justice and that of the general principles of that legal order.
The Polish Government submits that the fact that the proposed international agreement confers jurisdiction on the new court in respect of European patents does not give rise to any doubts. Within the limits of the competences conferred on them in the matter, the Member States can, by way of an agreement, establish an international court having jurisdiction in disputes concerning European patents. The conferment of jurisdiction on the new court in disputes relating to Community patents cannot be regarded as incompatible with the Treaty, since it does not have the consequence of altering the essential character of the jurisdiction conferred on the Court of Justice.
The Polish Government points out that it is only in the fields which have been reserved to the Court of Justice under the Treaty that the Member States can no longer conclude any agreements capable of altering the essential character of that jurisdiction. If the Court does not have jurisdiction in a particular field, in the absence of any provisions of the Treaty to that effect or of any secondary acts adopted pursuant to it, the Member States remain able to devise a judicial system in a particular field such that at issue here. In view of the absence of any Community act relating to the field of Community patents, the Court of Justice does not enjoy exclusive jurisdiction in the matter.
The Polish Government further submits that the proposed agreement and the fact of conferring jurisdiction on the PC in disputes relating both to European patents and to Community patents do not undermine the autonomy of the Community legal order. In addition, compliance with that system is ensured by means of the application of the preliminary ruling mechanism provided for.
In the view of the Polish Government, the proposed agreement sufficiently ensures that Community law and its primacy are observed by the PC. Even though the provisions of the proposed agreement do not expressly impose the obligation for the new court to apply that principle, it is bound by it. In addition, that obligation is characterised by a very wide scope and covers the whole of the acquis communautaire. Consequently, the position of that court is identical to that of the national courts, which are bound to apply not only the whole of the acquis communautaire, but also the relevant general principles of law and the case-law of the Court of Justice.
The Polish Government also takes the view that the proposed international agreement respects the autonomy of the Community legal order. The binding effect on the new court of the judgments given by the Court of Justice in response to questions referred for a preliminary ruling further strengthens the observance of that principle.
The Polish Government infers from this that the proposed agreement does not have the effect of altering the essential character of the jurisdiction which the Treaty confers on the Court of Justice. The latter’s powers remain the same, whether the point in issue is the validity or the interpretation of acts adopted by the institutions.
Finally, as regards Article 229a EC (now Article 262 TFEU), the Polish Government notes that that provision is discretionary in character since it provides for a possibility and not the obligation to confer jurisdiction on the Court of Justice in disputes relating to Community industrial property rights.
The Portuguese Government submits that there is a specific legal basis in the Treaty, namely Article 229a EC (now Article 262 TFEU), which appears appropriate and sufficient in relation to disputes on the future Community patent. So far as concerns disputes arising from the application of European patent rights, Article 308 EC (now Article 352 TFEU) constitutes the legal basis. The Council’s approval of the agreement in question thus requires a twofold legal basis.
The Portuguese Government also submits that Article 292 EC (now Article 344 TFEU) does not preclude or limit European Union competence to participate in the creation of a court at European level, on which jurisdiction is conferred for the purpose of resolving disputes between individuals and in a matter which has not yet been brought within the sphere of the exclusive jurisdiction of the Court of Justice.
As regards the preliminary ruling mechanism provided for in the draft agreement, the Portuguese Government points out that it does not exclude the Court of Justice from the process of interpreting and applying the relevant Community rules on patents. That jurisdiction to give preliminary rulings, intended to be exercised by the Court, is compatible with the Treaty.
The Portuguese Government observes that the authorising provision of Article 229a EC (now Article 262 TFEU) does not preclude the draft agreement. In addition to the fact that the Council is free to assess the need to extend the jurisdiction referred to in that provision, whenever it deems it most appropriate to do so, it is free to carry out a balanced evaluation as to the most appropriate procedures for its implementation. If the Council were granted the power to extend the jurisdiction of the Court of Justice to cover any dispute in connection with the Community patent, it should also be granted the power to determine the procedures for the Court’s intervention in relation to the process of referring questions for a preliminary ruling.
In the opinion of the Portuguese Government, there is nothing to prevent the provisions approved on the basis of Article 229a EC (now Article 262 TFEU) from arising from an act of international law. Not only are international agreements a source of law recognised by the Community legal order, but, moreover, the form of an international agreement constitutes the most appropriate means of ensuring the achievement of the European Union’s objectives in the field of the judicial protection of patents.
Finally, the Portuguese Government submits that Article 48 of the draft agreement constitutes a sufficient guarantee of the judicial nature of the Court of Justice and of its role within the Community institutional framework, so that the risk of an alteration of the essential character of its jurisdiction is excluded. Furthermore, Articles 14a and 48 of the draft agreement deal with the requirements of the primacy and autonomy of the Community legal order.
The Romanian Government maintains that in the field of intellectual property the European Union has competence to harmonise the national laws and that it is entitled to use Article 308 EC (now Article 352 TFEU) in order to create new industrial property rights which overlap with national rights. Given that the harmonisation achieved up to now at Community level covers only a limited part of that field, the European Union and the Member States have a shared competence.
The Romanian Government submits that, in so far as the Court of Justice has not had jurisdiction conferred on it in respect of the Community patent, there is no risk of undermining its jurisdiction. Article 229a EC (now Article 262 TFEU) creates a power for the Council, but not an obligation, only in regard to Community rights. By concluding an international agreement establishing a court with jurisdiction in the field of the Community patent, the Council chooses not to exercise that power conferred by the Treaty. With regard to the European patent, the Court does not have exclusive jurisdiction either.
The Romanian Government makes the point that, in order to ensure the autonomy of the Community legal order and the uniformity of its interpretation, the draft agreement provides for sufficient guarantees. The PC is obliged to respect Community law and to base its judgments on the relevant Community legislation and on the national legislation of the Contracting States implementing the Community legislation. That obligation must be interpreted as referring not only to primary and secondary European Union law, but also to the Court’s case-law.
The Romanian Government also states that, given the binding legal effects of the preliminary rulings given by the Court of Justice under the agreement, the competences of the European Union and its institutions are not altered in their essential character and the mechanisms relating to the interpretation of the rules in the agreement do not have the effect of imposing on the European Union and its institutions a particular interpretation of the rules of Community law.
The Romanian Government points out that no provision of the Treaty precludes an international agreement from conferring jurisdiction on the Court of Justice to interpret the provisions of such an agreement for the purposes of its application in non-member States. Consequently, the Court could rule on questions referred to it for a preliminary ruling by courts of non-member States. That conferment does not alter the essential character of the Court’s function as conceived in the Treaty, provided that its decisions have binding effect.
The Slovenian Government points out that the question of the European Union’s competence to conclude the proposed international agreement must be dealt with differently in the case of the European patent and in the case of the Community patent.
The Slovenian Government observes that the Treaty does not contain any legal basis giving the European Union competence to regulate the proposed judicial system. However, in so far as the European Union has already legislated in the field of intellectual property law and that law is affected by the conclusion of the proposed agreement, the European Union’s competence to conclude such an agreement should be recognised.
In the Slovenian Government’s submission, the objective pursued by the Regulation on the Community patent could not be attained in any way other than by the conclusion of the proposed agreement. Nor could that objective be better attained by the introduction of separate rules, since the latter would mean an illogical splitting in two of the system of judicial protection. A unified court for the European patent and the Community patent would constitute equivalent legal protection for the two types of patents and ensure legal certainty in the matter.
In the alternative, should the Court not hold that the European Union has exclusive competence to conclude the proposed agreement so far as concerns the part relating to the Community patent, the Slovenian Government points out that Article 308 EC (now Article 352 TFEU) provides the European Union, regardless of the existence of any implied competences, with the necessary legal basis for the conclusion of the agreement in question. The setting up of a unified court system for European and Community patents is necessary in order to carry out a European Union task. The introduction of a new unified court for the two types of patent does not constitute a circumvention of the Treaty provisions governing the Community judicial system.
The Slovenian Government points out that the settlement of disputes in fields in respect of which the Court of Justice has not been granted exclusive jurisdiction by the Treaty is entrusted to the courts of the Member States. Consequently, and provided that the Court’s rights and powers are not infringed, the Member States are entitled to provide for specific procedures relating to the judicial settlement of disputes related to patents. The Member States can also agree, on the basis of an international agreement, to entrust the settlement of certain types of disputes to an international court.
As regards Article 229a EC (now Article 262 TFEU), the Slovenian Government submits that that provision guarantees only the possibility of conferring jurisdiction in certain matters on the Court, but does not constitute an obligation. It therefore does not preclude the introduction of a system such as that provided for by the agreement. Moreover, nor is it possible to create the desired rules for a unified jurisdictional system for the European patent and the Community patent solely by the application of Article 229a EC (now Article 262 TFEU). That provision can be applied only for the purpose of conferring jurisdiction on the Court of Justice in respect of disputes relating to Community patents, but not in respect of disputes relating to European patents, since the latter fall within the jurisdiction of the courts of the Member States.
The Slovenian Government points out that the draft agreement does not alter the essential character of the function with which the Court is invested under the Treaty. Nor does the proposed unified litigation system for European and Community patents constitute a circumvention of the Treaty provisions governing the judicial system of the European Union.
The Slovenian Government submits that the agreement guarantees the principles of the primacy and autonomy of the Community legal order. In its decisions, the PC is bound to respect Community law in the same way as the national courts.
The Slovenian Government submits that the proposed agreement does not alter the essential characteristics of the competences of the Community institutions, as laid down by the Treaty. Furthermore, the courts established under that international agreement can refer to the Court of Justice requests for preliminary rulings and the Court’s judgments relating to such requests are binding on those courts. Consequently, the Court is the final interpreter of Community law. The fact that the Court’s jurisdiction to answer questions referred for a preliminary ruling is based on an international agreement, but not on the Treaty, can in no way affect its jurisdiction under the Treaty.
The Finnish Government submits that the proposed agreement is not in principle contrary to the jurisdiction and functions of the Court of Justice. The jurisdiction with which the PC will be invested does not in any way apply to legal relations between the Contracting States, but only to those existing between individuals. Consequently, nor can the proposed agreement be regarded as incompatible with Article 292 EC (now Article 344 TFEU).
The Finnish Government contends that the proposed agreement does not alter the essential character of the competences of the European Union and those of its institutions.
In the Finnish Government’s submission, the existence of differences between the preliminary ruling system under the proposed agreement and that under Article 234 EC (now Article 267 TFEU) nevertheless cannot result in a finding that the agreement is incompatible with the jurisdiction conferred on the Court of Justice. The Court’s judgments based on Article 48 of that agreement are binding on the court of first instance and the court of appeal.
The Finnish Government points out that the proposed agreement does not give the Contracting States freedom to authorise or not to authorise a reference to the Court of Justice for a preliminary ruling. The fact that the PC is not a court of a Contracting State does not actually affect the independence of the Court of Justice with regard to the interpretation of Community law. Nor does the absence, in the proposed agreement, of any legal means of obliging the PC to request the Court to give a preliminary ruling give rise to any conflict with that principle.
In the Finnish Government’s submission, the scope of Article 14a of the proposed agreement is not limited to the judgments of the Court of Justice given under the procedure provided for by Article 48 of the proposed agreement, but the Community law which is referred to in that provision concerns more broadly the Court’s case-law prior and subsequent to the conclusion of the agreement.
The Finnish Government submits that the mechanisms provided for by the proposed agreement, relating to the unity of interpretation of the respective rules of that agreement and of Community law, do not have the effect of imposing on the European Union and its institutions a particular interpretation of Community law.
With regard to the creation of a judicial system for matters concerning the European patent, the Finnish Government observes that the Treaty does not contain any provisions which can be an express or implied basis for Community competence to conclude the proposed agreement. The European patent is a form of protection of industrial property which is governed by the national laws of the Member States. In those circumstances, Article 308 EC (now Article 352 TFEU) does not confer competence on the European Union to conclude the proposed agreement, since the matter in question falls within the competence of the Member States.
The Finnish Government argues that Article 229a EC (now Article 262 TFEU) does not confer any express or implied competence on the European Union to conclude the proposed agreement in so far as that agreement concerns European patents. Nor does Article 65 EC (now Article 81 TFEU) confer any express or implied competence on the European Union to conclude an agreement the main purpose of which is the creation of an international judicial system.
As regards the creation of a jurisdictional system for matters concerning the Community patent, the Finnish Government observes that Article 229a EC (now Article 262 TFEU) does not allow of an interpretation according to which it confers a competence on the European Union to conclude an international agreement conferring the jurisdiction mentioned on a judicial body other than the Court of Justice. On the other hand, nothing precludes Article 229a EC (now Article 262 TFEU) from being interpreted as enabling the European Union to exercise the competence conferred by that provision by concluding an international agreement under which it is the Court of Justice which is invested with jurisdiction to hear and determine the disputes referred to by that provision, relating to Community industrial property rights.
The Swedish Government submits that the proposed agreement must be concluded jointly by the European Union and by the Member States.
The Swedish Government states that the Treaty does not provide any specific legal basis enabling the European Union to adopt measures concerning industrial property or to introduce a unified patent litigation system. It is nevertheless obvious that the establishment of such a system would strengthen the protection of industrial property and promote European competitiveness. In the light of the weaknesses of the present situation, such a measure is also necessary in order to achieve the Community objective of a high degree of competitiveness and convergence of economic performance. The conditions for the application of Article 308 EC (now Article 352 TFEU) as a legal basis for action by the European Union in the field in question are therefore satisfied.
The Swedish Government finds it difficult to imagine how Article 229a EC (now Article 262 TFEU) could be used for that purpose, since that article does not provide for any competence enabling the European Union to adopt substantive rules on the matter. It therefore signifies neither express competence nor implied competence for the European Union to conclude international agreements concerning patents. Furthermore, the Council has the power, and not the obligation, to widen the jurisdiction of the Court of Justice in the manner indicated. That provision does not prejudge the choice of the judicial framework which may be put in place for dealing with disputes relating to the application of acts adopted on the basis of the Treaty which create Community industrial property rights.
The Swedish Government submits that the draft agreement satisfies the requirements concerning the autonomy of the Community legal order. Unlike other international agreements, the proposed agreement does not confer competence on any body to determine the relations between Member States and the European Union in their capacity as parties to the agreement. There is therefore no risk that an international body such as the proposed court could have an influence on the division of internal competences between Member States and institutions or on the manner in which the Member States resolve disputes as to the interpretation or application of the Treaty.
The Swedish Government maintains that the proposed agreement does not undermine the roles of the Commission and the Court of Justice either. The draft in question does not entail any impairment of the autonomy of the Community legal order, since it provides sufficient guarantees as regards the uniform interpretation of Community law and the function of the Court of Justice under Article 220 EC (now Article 19 TEU). The judgments given by the Court within the framework of the proposed court system are binding.
The Swedish Government submits that the essential character of the Court of Justice is not altered by the fact that local or regional divisions of the PC, which have the possibility of requesting a preliminary ruling from the Court of Justice, are located outside the European Union.
In the Swedish Government’s submission, nor do the provisions relating to the implementation and application of the proposed agreement entail any impairment of the autonomy of the Community legal order. Three committees are set up for the implementation and application of the agreement. However, those committees are not able to impose on the European Union and its institutions a specific interpretation of the Community rules to which the agreement refers or to carry out, against the will of the European Union and the Member States, changes to the system provided for under the agreement.
The United Kingdom Government observes that, since European patents are in fact intellectual property rights created and protected by national law, the establishment and organisation of a specialised international court to determine disputes in relation to such patents is a matter that falls within Member States’ competence. Participation by the Member States in the agreement is, therefore, indispensable.
The United Kingdom Government notes that patent law is not an area which is covered to a large extent by Community rules, such as to give rise to exclusive competence for the European Union. As regards the creation of a Community industrial property right and a judicial system relating to it, Community competence exists in respect of the proposed agreement, alongside the competence of the Member States. Accordingly, the agreement may be concluded as a mixed agreement.
The United Kingdom Government submits that the essential character of the powers of the Community and its institutions as conceived in the Treaty remain unaltered by the proposed agreement. The procedures provided for in it relating to uniform interpretation of the rules of the agreement and to the resolution of disputes do not have the effect of binding the European Union and its institutions to a particular interpretation of the rules of Community law. In addition, the autonomy of the Community legal order and the exclusive jurisdiction of the Court of Justice to entertain the actions made available in the Treaty are not undermined.
The United Kingdom Government points out that there is nothing in the Treaty to suggest that the Court of Justice is intended to have a monopoly of the jurisdiction to apply Community law: None of the heads of jurisdiction conferred on the Court by the Treaty enables it to hear and determine disputes between private parties. The terms of Article 229a EC (now Article 262 TFEU) are wide enough to permit the conferral on the Court of jurisdiction in disputes between individuals, which may arise in connection with the application of a future Regulation on the Community patent. The Council remains free to make other arrangements for the judicial resolution of disputes relating to Community patents, such as, for example, by way of the proposed agreement. Consequently, the appropriate legal basis for conclusion of the agreement as a whole would be Article 308 EC (now Article 352 TFEU).
The United Kingdom Government asserts that the binding nature of the Court’s decisions, and hence the uniform application of Community law, are safeguarded by the provisions of Article 48 of the proposed agreement. The specific duty of the PC to accept the binding authority of rulings given by the Court of Justice in the framework of the preliminary ruling procedure is reinforced by its general duty, pursuant to Article 14a(1) of that agreement, to respect Community law.
The United Kingdom Government adds that the obligation imposed on Contracting States to bring into force the measures necessary to comply with the Community legislation relating to patent law also ensures the primacy and autonomy of Community law under the system at issue.
With regard to the legal basis of the proposed agreement, the Commission is of the opinion that disputes related to the application of acts which create the Community patent do not fall within an exclusive jurisdiction which is conferred on the Court of Justice by the Treaty. Article 229a EC (now Article 262 TFEU) merely authorises the Council to confer such an exclusive jurisdiction on the Court, which means that the Council may also refrain from exercising that power. Article 229a EC (now Article 262 TFEU) refers only to the situation in which the Community Courts have jurisdiction conferred on them to adjudicate themselves on disputes between private parties relating to the application of Community acts which create industrial property rights.
The Commission points out that the agreement as it is envisaged cannot be adopted solely on the basis of Article 229a EC (now Article 262 TFEU), given that it aims to create an international organisation, namely the PC, to lay down the organisational and procedural rules for that court and to confer on it jurisdiction in disputes relating to European and Community patents.
The Commission submits that the conferment on the PC of jurisdiction in disputes relating to the application of a Community act is compatible with the Treaty. Since the disputes assigned to the PC are disputes between individuals and not between Member States, the prohibition in Article 292 EC (now Article 344 TFEU) does not apply. The conferment of jurisdiction on that court to declare a Community patent invalid in consequence of a direct action or a counterclaim does not affect the jurisdiction conferred on the Court of Justice, so that that mechanism is compatible with the provisions of the Treaty.
As regards compliance with Community law by the PC and the remedies in the event of non-compliance, the Commission points out that the PC’s obligation has very wide scope, in so far as it covers not only the Treaty and the acts adopted by the institutions, but also the general principles of Community law and the case-law.
The Commission submits that, in the event of breaches of Community law by the PC, the system introduced by the proposed agreement allows for the same penalties as those provided for by the Community legal order in the event of misapplication of Community law by a national court. The Member States cannot avoid, by transferring judicial functions to an international court, the requirements laid down by Community law as regards the functioning of the national courts.
Consequently, in the Commission’s opinion, all the Member States collectively could be held liable for damage caused to an individual by a judicial decision given by the PC in breach of Community law. Moreover, should breaches of Community law by the PC be repeated and persistent, the Member States would be failing to fulfil their obligations under Community law if they continued to allow the decisions given by the PC to produce effects within their territory.
The Commission points out that the Court of Justice has accepted that it can be asked for a preliminary ruling by a court common to several Member States. The Court has also held that it can have questions referred to it for a preliminary ruling by courts other than those of the Member States, provided that the answers which it gives to them are binding on the referring courts. Consequently, the preliminary ruling mechanism established in the proposed agreement is compatible with the Treaty.
Rosario Silva de Lapuerta

Judge-Rapporteur

The Staff Union of the EPO (SUEPO) sent a letter to the President of the European Parliament, Jerzy Buzek, warning of risks for the European Parliament to be "circumvented" as a legislator when the EU will accede to the European Patent Convention (EPC). The European Patent Organisation is everything except a model of democracy: national patent offices are in power, there is no parliament involved in the decision making process, and diplomatic conferences are held behind closed doors.

Here is the letter in plain text, with some parts I put in bold:

INTERNATIONALE GEWERKSCHAFT IM EUROPÄISCHEN PATENTAMT
STAFF UNION OF THE EUROPEAN PATENT OFFICE (SUEPO)
UNION SYNDICALE DE L'OFFICE EUROPEEN DES BREVETS (USOEB)

Zentraler Vorstand - Central Executive Committee - Bureau central

10 May 2010
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For the attention of the Members of the European Parliament involved in intellectual property issues

EU Patent legislation
Accession of the European Union to the European Patent Convention

Dear Madam, dear Sir,

The European Parliament is currently preparing its position with regard to the EU Patent system and EU patent legislation. SUEPO, the Union of European Patent Office employees [1], is concerned about the shape of the future institutional cooperation between the EU and the EPO and wish to draw your attention to this subject.

Commission and Council consider the European Patent Office, an intergovernmental body established outside the EU institutions, as the right entity to take on the important public authority task of processing and granting EU patent applications. SUEPO welcomes the trust granted to the EPO. SUEPO shares the Commission's and the Council's opinion that Europe's existing, complex patent system urgently needs upgrading in order to meet the needs of the EU's "Lisbon Agenda": the European patent system currently lacks a single patent title and single patent jurisdiction [2]. Due to the split legislation there is also a lack of efficient coordination between EU patent policy and other relevant EU policies in the field of intellectual property policy (plant varieties, trade marks, etc…), competition, internal market issues, regional and SME policies.

However, the public percieves legislation under the existing intergovernmental European patent system to be intransparent. Further, the strong presence of chief executive officers of national patent offices in the governing body of the EPO, the EPO Administrative Council, results in an unhealthy competition between the European Patent Office and the national patent offices. It also hinders the harmonization of quality and renders more difficult an efficient distribution of tasks between the EPO and the national patent offices which is in the interest of the users of the system [3].

SUEPO is concerned about the future institutional link between the EU institutions and the EPO. In our view, gearing the EPO to the EU legislator can only be achieved effectively through the accession of the EU to the EPO: i.e. when the EU becomes a signatory of the EPC. The institutional concept allowing an efficient and legally sound gearing of the two organisations is available [4]. This concept would permit the EU to rely on the EPO to grant EU patents that are examined under legislation truly legitimated by EU legislative processes. In contrast, any contractual relationship between the EU and the EPO, should such an option be considered, would raise a number of serious legal undertainties.

1. It is particularly worrying that currently the EPO bodies, including legislative [5] and judicial [6] bodies, feel that they are not formally bound by EU legislation.

2. If a simple contractual relationship between EU and EPO is opted for, the procedures that allow the European Parliament to be involved in the legislative process (Ar. 218 EU Treaty) can be circumvented. Procedures allowing the European Parliament to hold the Commission accountable have no effect on a legislator - like the EPO - that is institutionally located outside the EU Institutions. The draft EU Patent Regulation [7], which is based on Art.118 of the EU Treaty, incorporates the EPC which may change in substance according to the wishes of the 37 EPO member states. Under a contractual relationship, an external legislator would be allowed to substitute into legislation under Art.118 EU Treaty. This would entail a loss of procedural rights of the European Parliament and introdude a structural inconsistency in the EU legislative process.

3. EU patent applications and third parties alike could challenge the validity of the EPO decisions based on international constitutional law, inspired by the appeal filed by a German businessman before the German Constitutional Court [8] (unconstitutionality of the European arrest warrant). Indeed, it is doubtful whether the European Patent Convention (EPC) provides for sufficient legal basis for the EPO to conclude far reaching agreements between the EU Member States and the EU (neither Art.40 EPC, nor Art.149 EPC).

4. Following the "Lisbon" judgement of the German Constitutional Court [9], the validity of the envisaged EU Patent Regulation itself could be challenged based on the failure to meet constitutionality standards equivalent to German standards, since an important element for the creation of the EU Patent, the EPC, would stay outside of constitutionally safe legislation.

5. Litigation brought before the ECJ (Court of Justice of the European Union) by patent applicants of third parties [10] may entaila a challenge of the validity of the EU Regulation itself, for instance because of a lack on involvement of the EU Parliament.

6. The danger described for the EU Patent Regulation may also apply to the decisions of the European and Community Patent Court, since the agreement on this Court (Art. 14) foresees the applicability of the EPC also for the validity assessment of EU Patents.

It would be highly problematic that individual patent applicants, patent owners or third parties be put in a position of challenging the validity of the whole European legislative construction. The risk taken in opting for a contractual relation between the EPO and the EU would be entirely disproportionate.

In the light of the considerations above we urge you to give the considered accession of the EU to the EPO under Art.218 EU Treaty the highest attention. Should you have doubts on the relevance of the questions raised by SUEPO, we suggest that an opinion be requested from the European Parliament's Legal Service.

Yours sincerely,

Edward Daintith Chairman SUEPO Central Executive Committee

Desmond Radford Chairman SUEPO The Hague

Dorothée Heller Chairwoman SUEPO Munich

Carmen Schuhmann Chairwoman SUEPO Vienna

Peter Kempen Chairman SUEPO Berlin

Copy: Mr J. Buzek, President of the European Parliament Mr M.Barnier, Commissioner, DG MARKT

[1] SUEPO is an affiliate of Union Syndicale Fédérale (USF), European Public Services Unions (EPSU), European Trade Unions Confederation (ETUC)
[2] Harhoff, Economic Cost-Benefit Analysis of a Unified and Integrated European Patent Litigation System, Final Report, Study commissioned by DG MARKT of the European Commission, Tender No. MARKT/2008/06/D, 31 December 2008, as revised on 9 February 2009, p. 40; see also Van Pottelsberghe in http://www.bruegel.org/uploads/tx_btbbreugel/pb_201002_300310-2.pdf
[3] Van Pottelsberghe, Danguy, Economic Cost-Benefits Analysis of the Community Patent, Study commissioned by DG MARKT of the European Commission, 7th April 2009, http://ec.europa.eu/internal_market/indprop/docs/patent/studies/litigation_system_en.pdf
[4] Council document 14551/03, 13th November 2003
[5] EPO Official Journal 8-9/1999, p.573, paragraphs 2-3: "2. Directive 98/44/EC of the European Parliament and of the Council of 6th July 1998 (hereafter the Directive) on the legal protection of biotechnological inventions entered into force on the 30 July 1998. EU member states are required to implement it in national law by 30 July 2000. 3. The European Patent Organisation itself is not subject to this formal requirement."
[6] See decision of the Enlarged Board of Appeal of the EPO G 1/06, point 6: "The Boards of Appeal apply the provision [the Directive] because it is law under a specific Rule of the Implementing Regulations to the EPC, and not because the Directive is a source of law to be applied directly."
[7] Council document 8588/09, 7th April 2009
[8] Bundesverfassungsgericht, judgment of the18th July 2005, "2 BvR 2236/04"
[9] Bundesverfassungsgericht, "Lisbon Treaty judgement", “2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09”
[10] Art.48 of the Draft European and Community Patent Court agreement, Council document 7928/09, 23rd March 2009

Here is the full letter in images, also a copy in PDF:

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There is a pending report on "Community innovation policy in a changing world" led by Hermann Winkler (PPE) in the European Parliament (that will come to plenary for a vote in June), and some amendments at the committee stage were already quite critical of the future role that will be played by the European Parliament patent law:

FFII comments on the Winkler report: "European Parliament not a legislator of second class"
April 27 2010

Dear Member of the ITRE Committee,

I am writing to you regarding the pending Winkler report on reviewing
Community innovation policy in a changing world (2009/2227(INI)) [1]. For me
it seems an important initiative to address the institutional deficits that
stifled the ambitious Lisbon innovation goals.

I am very delighted about amendment 103 and ask you to lend your support to
this:

"22b. Warns against the proposal to set up an International Patent Court
within the United Patent Litigation System draft Treaty, and points to the
fact that such a Court would not be counterbalanced by any legislative
assembly
, let alone the European Parliament;"

In 2003 the FFII coined the slogan "Power to the Parliament". It is known
that the European Parliament rejected the controversial software patent
directive in 2005 [2]. Less then 6 months after the rejection of the bill,
the patent lobby asked to get a specialised court in place.

The Parliament had also passed a resolution in 2006 [3] asking for
assessments of "patent quality, governance of the patent system, judicial
independence and litigation costs".

The pending UPLS international treaty will create a patent court outside
of the EU system, outside of the European Parliament, and outside of the
European Court of Justice [4].

Please have your say on the attempts to make the European Parliament
defunct as a legislator in patent matters, and endorse amendment 103.

Best regards,


HENRION Benjamin <bhenrion at ffii.org>
President of FFII.org
Tel: +32-484-566109

[1] http://www.europarl.europa.eu/activities/committees/amendmentsCom/comparlDossier.do;jsessionid=93DC543C37F0A871B357A03D0B62E57A.node2?dossier=ITRE/7/01773&body=ITRE&language=EN
[2] http://epla.ffii.org/quotes
[3] http://kwiki.ffii.org/EplaReso061012En
[4] http://press.ffii.org/Press%20releases/EU%20patent%20system%20taken%20away%20from%20European%20Court%20of%20Justice

I have to note that the position of SUEPO is not quite consistent with what they have pushed in their past positions papers (the source is their submission to the Consultation on the Green Paper in 1997, I still have to find a copy of that, but I quoted it in one of my presentation "EU vs EPO" at the EPO conference in Ljubljana in 2008):

"As proposed by the founding fathers of the European patent system, the Staff Union of the EPO proposes the return of the entire European patent system to the framework of Community law […] The EPO should be integrated into the Community Institutions, which alone are capable of exercising a political control taking into account public interest at European level"

If you still have a copy of this submission by the SUEPO, I would be interested to have one. It should be available on request at the European Commission. Furthermore, I know that some examiners submitted a petition to the European Parliament on this subject.

Now with the proposed UPLS plans, it seems that the European Union will be absorbed by the European Patent Organisation, not the other way around. European Parliament won't have a direct control of the european patent office.

Mr Gaster replied to this presentation that software patents were only representing 3% of the total patent applications.

A recent book "Patent Law for Computer Scientists" by EPO examinors says that 30% of all EPO patents (granted and pending) deals with computers:

While roughly a third of all applications (and granted patents) relate, in one way or another, to a computer, applications where the innovation mainly resides in software or in a business method are treated differently by the major patent offices in the US (USPTO), Japan (JPO) and Europe (EPO).

There is no doubt after the conference that the European Commission is pushing for software patents via the caselaw of a central patent court in the EU.

FFII has argued at the KnowRights2010 conference in Vienna that the UPLS central patent court was designed to rubberstamp software patents in Europe.

Here are the slides of the presentation:

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What's wrong with the UPLS?

Roadblocks for a central patent court in Europe
Benjamin Henrion
http://ffii.orghttp://zoobab.com
KnowRights 2010


What is the UPLS?

  • Stands for United Patent Litigation System
  • International Treaty (ex: ACTA)
  • Drafted by the patent industry, patent judges and Council members
  • Goal: creation of an specialized court system to judge EU+Com patents
    • Successor of the European Patent Litigation Agreement (EPLA)
    • Decentralised regional courts for infringement (Ex: one court for Benelux)
    • Central validity court
    • Open to non-EU states EEA, not EPC (ex: Switzerland, Iceland, not Turkey)
    • Competent for European and future Community patents
    • Outsourcing of national courts to those courts

Problem 1: Democracy

  • A state: seperation of powers
    • Legislator (ex: Congress, Senate)
    • Judiciary (ex: CAFC+SCOTUS)
    • Executive (ex: USPTO)

Problem 1: Democracy

  • The EU: mixed legislator
    • Legislator: Council of Ministers + European Parliament
    • Judiciary: National courts + ECJ
    • Executive: none in patent law
  • The UPLS: an international legislator
    • Legislator: international governements (diplomatic conference)
    • Judiciary: an international court(s)
    • Executive: an international organisation (EPO)

Problem 1: Democracy

  • Problems with "international" structures
    • Lack of transparency of the negotiations
    • No elected legislator
    • International executive (ex: EPO)
    • No feedback mechanism between national parliaments and executive (ex: EPO)

Problem 1: Democracy

  • Who is the legislator?
  • Does the legislator is elected?
  • -> How does reforming the law works?
  • Brimelow: reforming the EPC is nearly impossible
  • EU joinng the EPC
  • ICJ (UN states) for disputes on EPC

Problem 2: Software Patents

  • The Software Patent directive was rejected at the request of large companies
  • Better push for a central patent court
  • "All the European institutions and industry have worked hard and constructively on the issue of CII patents for some time. Europe's high tech industry will support the efforts of the European institutions to find broader improvements to the European patent system that will particularly benefit the interests of smaller companies."— EICTA, Europe's High Tech Industry Welcomes European
  • SAP, IBM, Microsoft, Philips are pushing for such court
  • What is their interest if it is not about software patents validation?

Problem 2: Software Patents

  • Recent diverging cases
    • Exalead EP1182581 search engine method (France)
    • FAT patent validated (Germany)
    • Gemstar EPG patent invalidated (UK)
  • Centralised case-law, interpretation problem solved

Problem 2: Software Patents

  • Centralised case-law, interpretation problem solved
  • "The purpose of the unified Patent Court is inter alia to reduce the variety of interpretations of patent scope and claim interpretation in Europe, especially at non-specialized courts."— Commission: Economic Cost-Benefit Analysis of a Unified and Integrated European Patent System
  • "However, the idea to establish a single European patent court is a trap because the patent movement will make sure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents."— FFII submission to the 2006 consultation

Problem 2: Software Patents

  • "The IPR system also needs to be improved by the creation of a Community patent for innovative ICT companies to protect their inventions in the single market."— European Commision, A Strategy for ICT R&D and Innovation in Europe: Raising the Game
  • "Now, currently, in a few cases in some very specific fields (biotech and IT) differences arise in how the national courts interprete the EPC. This can be solved either via a common court which would set EU (or EPOrg) wide case law, or by legislating those gray zones. However, the latest attempt to harmonise EU patent law regarding one of those grey zones (the CII directive) was the fiasco we all remember." — IPJur: Yet Another Revised Proposal For A Council Regulation On The Community Patent

Problem 3: Fundamental rights

  • What happens if a fundamental right issue is raised?
    • EUpat: national constitution links?
    • Compat: ECJ + charter of fundamental rights in Lisbon?
    • Does the Lisbon Treaty provides a Constitutional basis?
    • Ex: program claims Vs freedom of expression
    • Patent law do not operate in a vaccuum (Pr Vivant, recent CEIPI conference)
    • Extraction of parts of civil law, whole civil law corpus

Problem 4: Judicial review

  • UPLS is framed to be controlled by the patent profession
  • "We do not feel it would be helpful for the ECJ to become involved in questions of substantive patent law - and we believe industry to be of like mind." — Responses of 5 UK patent judges to the EC Consultation of 2006
  • Risks of being captured by the patent establishment
  • Critics in the US bash the CAFC as being "captive"
  • US Supreme Court reviewing more and more CAFC decisions (lowered standards, injunctions, subject matter,…)

Problem 5: Legal base

  • The French excuse to refuse EPLA
  • French constitution requires french judges
  • France EPLA
  • European Commission internally split on EPLA
  • EPLA and IPRED1: delay the talks, claims competence

Problem 5: Legal base

  • Find a legal base: none in the EU treaties
  • Patent industry refusal to have specialized ECJ tribunals
  • UPLS is the legal base
  • Patch to the Lisbon treaty to support European Patent
  • Needs to be ratified by National Parliaments, like Lisbon
  • Huge lobbying if the ECJ gives some "green light"

Problem 6: Costs

  • Reduction of the cost of the litigation is the main argument
  • Reduction for the "problem" of parallel cases
  • Total Cost of Litigation (TCL):
    • procedural costs
    • damages
    • seizures of assets
    • injunctions
    • products stopped
  • SMEs: court system too costly, out of court settlements, parallel cases not really a concern

Problem 6: Costs

  • EPLA estimates by the EPO: 100K EUR/case (procedural costs, outside of damages)
  • EU-wide patent injunctions will be possible (products stopped)
  • Pan-european damages (Ex: 5.000.000EUR asked for damages in France, multiplied by 27?)
  • Pan-european damages jackpots will be incentives for patent trolls/owners to enforce their patents
  • Blackberry scenarios in Europe
  • Costs of specialized patent lawyers
  • US vs EU: looser pays all

Problem 6: Costs

  • Harhoff study: not really deep in econometry
  • More studies of cost predictions?
  • "The European Commission said "parallel litigation" - having to fight a cross-border patent dispute in different countries at the same time - typically costs at least EUR498,000 per case. A "unified" patent court, it estimates, would drastically cut that to about EUR221,000 in an average case." — Irish Examiner: Brussels brokers EU-wide patenting breakthrough
  • Cross-border cases: less then 10% of cases
  • Risk to higher the cost for the other 90% of cases (national only)

Problem 7: Languages

  • Lisbon Treaty: languages "restriction" at unanimity
  • Lisbon Treaty: no languages discrimination (charter of fundamental rights)
  • Is there a conflict of law there?
  • ECHR: no languages discrimination
  • Case for trademarks
  • EPO opposition in 3 languages?
  • Automatic translation (laugh!)
  • Language of the trial? Language of the defendent?

Problem 8: Law

  • Extraction of the patent part of the civil law corpus of the Member States
  • Does the extraction is enough to cover all the aspects of civil litigation?
  • Lack of harmonisation for "parallel imports" (patented in one country, not in another)
  • Caselaw well developed on "Epuisement du droit" in France
  • Freedom of circulation through the internal market when sold in one country
  • European Patent law operating in a vacuum
  • UPLS called "bricolage" by some law professor at the recent CEIPI conference

Problem 9: Feedback

  • Multiple courts: divergent interpretations
  • Show where the judges do not agree
  • Won't be available anymore to legislators
  • This was the basis of the EU patent directive (UK Vs DE)

Other Problems

  • Does it comply with all 27 constitutions?
  • Does it comply with the acquis communautaire?
  • Where to locate the courts?
  • Will they sign a treaty without knowing the court location?
  • Risks of forum shopping
  • Enough grip in the EU treaties to bypass national constitutions for judging European patents?

Agenda

  • 18 May: ECJ hearing of the Council delegations
  • European Parliament "sign here" process
  • European Parliament information (similar to ACTA)
  • ECJ opinion by the end of the year, delay with Lisbon
  • Maybe the ECJ will throw a legal spanner?
  • Discussion unanimity Vs QMV in the Council?

The United Patent Litigation System (UPLS) is an international treaty which aims to create an international patent court in Europe. Here are 6 reasons to oppose the United Patent Litigation System (UPLS).

  1. Democracy: this treaty creates a court system that won't be balanced by elected legislators, turning the European Parliament or National Parliaments into egislators of second zone. The legislator won't be elected, and won't be able to counter decisions of such court. The UPLS creates an international patent court outside of the European Union legal system, to which the European Union would have to adhere. Furthermore, the European Parliament does not have the power to initiate new laws if it wants to counter decisions of such a court.
  2. Fundamental rights: No appeal to a constitutional court will be possible, in case patent law conflicts w ith other laws, such as fundamental rights. The European Union does not have at the moment a Constitution to which European citizens and companies could appeal. An international patent court such as the one created by the UPLS won't allow appeal to upper constitutional courts, nor national constitutional courts. The recent interventions of the US Supreme Court against decisions of specialized patent courts (CAFC), notably to confront patent law with other pieces of law, shows that fundamental rights should have a place in the judicial system, and that patent law does not operate in a vacuum.
  3. Software patents: centralisation of the court system, especially for validity, will validate software patents though the case law of a central patent court. Large software multinationals have asked in July 2005 for the rejection of the software patent directive in order to better push for a central patent instead. They are also lobbying governments not to reopen the discussions on this topic. Specialized patent judges, especially from Germany and UK, have already validated software patents in their respective countries. Software patents will be validated EU-wide without a debate in the European or National Parliaments. The idea to establish a single European patent court is a trap because the patent movement will ensure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish.
  4. Cost of Litigation: Proponents of the UPLS argue that the cost of litigation will be lowered, thanks to the suppression of cases happening in parallel in multiple countries. This does not take into account that the majority of cases (90%) happens in a single Member State only, while only 10% of them happening in multiple countries. Installing such system would raise the cost for the majority of cases, which are national only. Even the unreliable cost figures for a simple case proposed by the EPO during the EPLA discussions (around 100K EUR, damages not included) are too high for many stakeholders. Furthermore, pan-european injunctions to stop products and pan-european damages are an incentive to litigate for patent trolls.
  5. Patent law outside of the EU: With the UPLS, the European Union decides to outsource its patent law to international organisations, such as the EPO or the UPLS court. This is similar to the European Union outsourcing its defense policy to NATO, where decisions are controlled or blocked by foreign nations. Those international organisations won't follow any directives which applies to other EU institutions (ex: staff rules, access to documents, respect of languages, etc…).
  6. Alternative models exist: Alternatives to the UPLS model exists, such as copying the model of the Community Trademark system. The Patent Establishment prefers to create its own court to better control it, and avoid any judicial review from non-patent courts.

The United Patent Litigation System (UPLS) is an international treaty which aims to create an international patent court in Europe. Here are 6 reasons to oppose the United Patent Litigation System (UPLS).

  1. Democracy: this treaty creates a court system that won't be balanced by elected legislators, turning the European Parliament or National Parliaments legislators of second zone. The legislator won't be elected, and won't be able to counter decisions of such court. The UPLS creates an international patent court outside of the European Union legal system, to which the European Union would have to adhere. Furthermore, the European Parliament does not have the power to initiate new laws if it wants to counter decisions of such a court.
  2. Fundamental rights: No appeal to a constitutional court will be possible, in case patent law conflicts w ith other laws, such as fundamental rights. The European Union does not have at the moment a Constitution to which European citizens and companies could appeal. An international patent court such as the one created by the UPLS won't allow appeal to upper constitutional courts, nor national constitutional courts. The recent interventions of the US Supreme Court against decisions of specialized patent courts (CAFC), notably to confront patent law with other pieces of law, shows that fundamental rights should have a place in the judicial system, and that patent law does not operate in a vacuum.
  3. Software patents: centralisation of the court system, especially for validity, will validate software patents though the case law of a central patent court. Large software multinationals have asked in July 2005 for the rejection of the software patent directive in order to better push for a central patent instead. They are also lobbying governments not to reopen the discussions on this topic. Specialized patent judges, especially from Germany and UK, have already validated software patents in their respective countries. Software patents will be validated EU-wide without a debate in the European or National Parliaments. The idea to establish a single European patent court is a trap because the patent movement will ensure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish.
  4. Cost of Litigation: Proponents of the UPLS argue that the cost of litigation will be lowered, thanks to the suppression of cases happening in parallel in multiple countries. This does not take into account that the majority of cases (90%) happens in a single Member State only, while only 10% of them happening in multiple countries. Installing such system would raise the cost for the majority of cases, which are national only. Even the unreliable cost figures for a simple case proposed by the EPO during the EPLA discussions (around 100K EUR, damages not included) are too high for many stakeholders. Furthermore, pan-european injunctions to stop products and pan-european damages are an incentive to litigate for patent trolls.
  5. Patent law outside of the EU: With the UPLS, the European Union decides to outsource its patent law to international organisations, such as the EPO or the UPLS court. This is similar to the European Union outsourcing its defense policy to NATO, where decisions are controlled or blocked by foreign nations. Those international organisations won't follow any directives which applies to other EU institutions (ex: staff rules, access to documents, respect of languages, etc…).
  6. Alternative models exist: Alternatives to the UPLS model exists, such as copying the model of the Community Trademark system. The Patent Establishment prefers to create its own court to better control it, and avoid any judicial review from non-patent courts.

The United Patent Litigation System (UPLS) is an international treaty which aims to create an international patent court in Europe. Here are 6 reasons to oppose the United Patent Litigation System (UPLS).

  1. Democracy: this treaty creates a court system that won't be balanced by elected legislators, turning the European Parliament or National Parliaments legislators of second zone. The legislator won't be elected, and won't be able to counter decisions of such court. The UPLS creates an international patent court outside of the European Union legal system, to which the European Union would have to adhere. Furthermore, the European Parliament does not have the power to initiate new laws if it wants to counter decisions of such a court.
  2. Fundamental rights: No appeal to a constitutional court will be possible, in case patent law conflicts w ith other laws, such as fundamental rights. The European Union does not have at the moment a Constitution to which European citizens and companies could appeal. An international patent court such as the one created by the UPLS won't allow appeal to upper constitutional courts, nor national constitutional courts. The recent interventions of the US Supreme Court against decisions of specialized patent courts (CAFC), notably to confront patent law with other pieces of law, shows that fundamental rights should have a place in the judicial system, and that patent law does not operate in a vacuum.
  3. Software patents: centralisation of the court system, especially for validity, will validate software patents though the case law of a central patent court. Large software multinationals have asked in July 2005 for the rejection of the software patent directive in order to better push for a central patent instead. They are also lobbying governments not to reopen the discussions on this topic. Specialized patent judges, especially from Germany and UK, have already validated software patents in their respective countries. Software patents will be validated EU-wide without a debate in the European or National Parliaments. The idea to establish a single European patent court is a trap because the patent movement will ensure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish.
  4. Cost of Litigation: Proponents of the UPLS argue that the cost of litigation will be lowered, thanks to the suppression of cases happening in parallel in multiple countries. This does not take into account that the majority of cases (90%) happens in a single Member State only, while only 10% of them happening in multiple countries. Installing such system would raise the cost for the majority of cases, which are national only. Even the unreliable cost figures for a simple case proposed by the EPO during the EPLA discussions (around 100K EUR, damages not included) are too high for many stakeholders. Furthermore, pan-european injunctions to stop products and pan-european damages are an incentive to litigate for patent trolls.
  5. Patent law outside of the EU: With the UPLS, the European Union decides to outsource its patent law to international organisations, such as the EPO or the UPLS court. This is similar to the European Union outsourcing its defense policy to NATO, where decisions are controlled or blocked by foreign nations. Those international organisations won't follow any directives which applies to other EU institutions (ex: staff rules, access to documents, respect of languages, etc…).
  6. Alternative models exist: Alternatives to the UPLS model exists, such as copying the model of the Community Trademark system. The Patent Establishment prefers to create its own court to better control it, and avoid any judicial review from non-patent courts.
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zoobabzoobab 15 Apr 2010 14:21
in discussion News / Front page » test

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test by zoobabzoobab, 15 Apr 2010 14:21

The United Patent Litigation System (UPLS) is an international treaty which aims to create an international patent court in Europe. Here are 6 reasons to oppose the United Patent Litigation System (UPLS).

  1. Democracy: this treaty creates a court system that won't be balanced by elected legislators, turning the European Parliament or National Parliaments legislators of second zone. The legislator won't be elected, and won't be able to counter decisions of such court. The UPLS creates an international patent court outside of the European Union legal system, to which the European Union would have to adhere. Furthermore, the European Parliament does not have the power to initiate new laws if it wants to counter decisions of such a court.
  2. Fundamental rights: No appeal to a constitutional court will be possible, in case patent law conflicts w ith other laws, such as fundamental rights. The European Union does not have at the moment a Constitution to which European citizens and companies could appeal. An international patent court such as the one created by the UPLS won't allow appeal to upper constitutional courts, nor national constitutional courts. The recent interventions of the US Supreme Court against decisions of specialized patent courts (CAFC), notably to confront patent law with other pieces of law, shows that fundamental rights should have a place in the judicial system, and that patent law does not operate in a vacuum.
  3. Software patents: centralisation of the court system, especially for validity, will validate software patents though the case law of a central patent court. Large software multinationals have asked in July 2005 for the rejection of the software patent directive in order to better push for a central patent instead. They are also lobbying governments not to reopen the discussions on this topic. Specialized patent judges, especially from Germany and UK, have already validated software patents in their respective countries. Software patents will be validated EU-wide without a debate in the European or National Parliaments. The idea to establish a single European patent court is a trap because the patent movement will ensure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish.
  4. Cost of Litigation: Proponents of the UPLS argue that the cost of litigation will be lowered, thanks to the suppression of cases happening in parallel in multiple countries. This does not take into account that the majority of cases (90%) happens in a single Member State only, while only 10% of them happening in multiple countries. Installing such system would raise the cost for the majority of cases, which are national only. Even the unreliable cost figures for a simple case proposed by the EPO during the EPLA discussions (around 100K EUR, damages not included) are too high for many stakeholders. Furthermore, pan-european injunctions to stop products and pan-european damages are an incentive to litigate for patent trolls.
  5. Patent law outside of the EU: With the UPLS, the European Union decides to outsource its patent law to international organisations, such as the EPO or the UPLS court. This is similar to the European Union outsourcing its defense policy to NATO, where decisions are controlled or blocked by foreign nations. Those international organisations won't follow any directives which applies to other EU institutions (ex: staff rules, access to documents, respect of languages, etc…).
  6. Alternative models exist: Alternatives to the UPLS model exists, such as copying the model of the Community Trademark system. The Patent Establishment prefers to create its own court to better control it, and avoid any judicial review from non-patent courts.

The United Patent Litigation System (UPLS) is an international treaty which aims to create an international patent court in Europe. Here are 6 reasons to oppose the United Patent Litigation System (UPLS).

  1. Democracy: this treaty creates a court system that won't be balanced by elected legislators, turning the European Parliament or National Parliaments legislators of second zone. The legislator won't be elected, and won't be able to counter decisions of such court. The UPLS creates an international patent court outside of the European Union legal system, to which the European Union would have to adhere. Furthermore, the European Parliament does not have the power to initiate new laws if it wants to counter decisions of such a court.
  2. Fundamental rights: No appeal to a constitutional court will be possible, in case patent law conflicts w ith other laws, such as fundamental rights. The European Union does not have at the moment a Constitution to which European citizens and companies could appeal. An international patent court such as the one created by the UPLS won't allow appeal to upper constitutional courts, nor national constitutional courts. The recent interventions of the US Supreme Court against decisions of specialized patent courts (CAFC), notably to confront patent law with other pieces of law, shows that fundamental rights should have a place in the judicial system, and that patent law does not operate in a vacuum.
  3. Software patents: centralisation of the court system, especially for validity, will validate software patents though the case law of a central patent court. Large software multinationals have asked in July 2005 for the rejection of the software patent directive in order to better push for a central patent instead. They are also lobbying governments not to reopen the discussions on this topic. Specialized patent judges, especially from Germany and UK, have already validated software patents in their respective countries. Software patents will be validated EU-wide without a debate in the European or National Parliaments. The idea to establish a single European patent court is a trap because the patent movement will ensure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish.
  4. Cost of Litigation: Proponents of the UPLS argue that the cost of litigation will be lowered, thanks to the suppression of cases happening in parallel in multiple countries. This does not take into account that the majority of cases (90%) happens in a single Member State only, while only 10% of them happening in multiple countries. Installing such system would raise the cost for the majority of cases, which are national only. Even the unreliable cost figures for a simple case proposed by the EPO during the EPLA discussions (around 100K EUR, damages not included) are too high for many stakeholders. Furthermore, pan-european injunctions to stop products and pan-european damages are an incentive to litigate for patent trolls.
  5. Patent law outside of the EU: With the UPLS, the European Union decides to outsource its patent law to international organisations, such as the EPO or the UPLS court. This is similar to the European Union outsourcing its defense policy to NATO, where decisions are controlled or blocked by foreign nations. Those international organisations won't follow any directives which applies to other EU institutions (ex: staff rules, access to documents, respect of languages, etc…).
  6. Alternative models exist: Alternatives to the UPLS model exists, such as copying the model of the Community Trademark system. The Patent Establishment prefers to create its own court to better control it, and avoid any judicial review from non-patent courts.

I forgot one disadvantage:

1. Erasure of fundamental rights and appeals to national supreme courts

A journalist of WorldIPReview recently asked FFII what were its views of the proposed United Patent Litigation System (UPLS), which is now being questioned by the Council in a submission to the ECJ. FFII had already published a press release mentioning the new push for software patents in Europe via a centralised and trusted court.

Here are some answers to the questions of the journalist, note that I did not touch on the subject of "Where is the European Parliament?" in the legislator section.


Q1: What particular element of the United Patent Litigation System (UPLS) proposal has initiated concern regarding software patents?

1. Centralisation

The United Patent Litigation System (UPLS) is heavily inspired from the European Patent Litigation Agreement (EPLA). They have a lot of similarities, inside the FFII we call the UPLS the EU-EPLA, which is the EPLA rebranded with a EU flag on top to make it look like an EU project.

The UPLS and EPLA have in common that they are both international treaties, and not EU regulation (directive, council framework decision, etc…) per se. It means that other countries that are non-EU (such as Turkey, Iceland or even the United States) could potentially join the treaty. The fact that it is not an EU piece of law means that the legislator won't be the European Parliament. As we saw with other international treaties such as ACTA, those treaties are typically negotiated behind closed doors, and the Parliaments (the European one or the nationals ones) typically do not have a say over their content. The UPLS is mainly a piece of legislation written by bureaucrats of the Commission and Government officials, with no input whatsoever from members of those parliaments.

The pro-software patent lobby, mainly represented by EICTA members (mainly Philips, Siemens, Alcatel, Nokia, Ericsson) or BSA (heavily driven by Microsoft) called members of the EPP party some days before the vote of failed software patent directive, asking them to vote for rejection, and push for a central patent court instead.

The divergence of opinions of several courts in Europe (mainly Germany and UK) was the argument the Commission used in 2002 to issue a directive proposal on the subject:

http://web.archive.org/web/20000818230031/www.freepatents.org/agree/images/pat1.png

With the elimination of different courts and creation of a central patent court for validity cases, the disparity of interpretations by different courts has been abolished.

This disparity is important, because it shows to the legislator where there is conflict of interpretation, and where the legislator should intervene to clarify.

2. Legislator

The problem with creating a international patent court between several countries is to balance it with a legislator, who would be competent to correct the behaviour of such court.

In the present state, the legislator would be the government officials signatory of the European Patent Convention, among which you find often that they belong to National Patent Offices.

This conflict of interests has been denounced during the strike of EPO examiners a while ago.

The influence of National Patent Office was also very important during the software patent directive in the Council, where the decision to support software patents was motly made by officials from National Patent Offices.

3. Trusted patent judges

Specialized patent judges have a tendency to favour the patentee, and in the case of the UPLS, they will be handpicked.

The main reason to avoid the creation of patent tribunals inside the ECJ legal system is to be able for the patent establishment to be able to handpick their judges.

Among the top patent judges in Europe, it is pretty easy to see which judges favour software patentability and which do not. The pro software patents will be a criteria for selecting judges. You can expect for example that the delegation of Germany will propose candidates that will favour a narrow and hair-stretched interpretation of the EPC, like the EPO technical board of appeal is doing with "software … as such", software is technical, further technical effect, and so on.

4. No judicial review by the ECJ

One of the main battle right now is the competence by the ECJ to review the behaviour of such court.

The UPLS is a seperate legal system from the EU legal system, and is not connected to it in any meaningfull way.

The US experience with specialized patent courts shows that those courts have interpreted the law broadly, they have notably lowered the threshold of obviousness, allowed software and business method patents, or granted automatic injunctions.

Rencently, the US Supreme Court is taking more and more case for review, in order to correct the abuse behaviour of such specialized patent courts. Such mecanism would not be available in the present draft of the UPLS. It is not surprising to hear that the patent establishment is heavily lobbying against it.

Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples

1. Higher total costs of litigation

The fact that a regional court can issue EU-wide injunctions to stop a potentially infringing product is quite a powerful instrument.

You can expect damages to be calculated in function of the size of the market, in this case the whole EU, plus other countries which will be part of the UPLS agreement.

This is basically what is happening in the United States, where district courts issue US-wide injunctions with US-wide damages.

The patent industry, when trying to justify the need for the UPLS, mostly never mention this.

EU-wide injunctions and damages will be an incentive for patent trolls to enforce their patents.

The other problem with the UPLS is the cost of the procedure. Right now, 90% of cases are not cross-border cases (in one country only), and the Commission and other UPLS proponents try to solve a problem encountered in 10% of cases.

The UPLS, with its system of specialized patent courts, and its international dimension, carries a high probability to raise the lawyer's fees for the majority of non-cross border disputes (90% of cases). Since the system will be fully specialized, patent lawyers will definitely raise their prices. This might be sensitive for Eastern countries, where the cost of litigation is pretty low, compared to western standards.

2. EU-wide injunctions to stop a software product

The main risk with such system is to have a very favourable regional court issuing quasi-automatic EU-wide injunctions in order to stop the diffusion of a suspected infringing product.

There has been recently a hearing in the European Parliament about the IPRED1 directive, where a french expert said french judges were now forced to issue injunctions in the case of "suspicion" of infringement, instead of "quasi-certainty" of infringement.

Right now, it is very complicated for a patentee to obtain an EU-wide injunction, because he has to go to every jurisdiction, and this has never happened up to now. The "lis pendens" mecanism has also provided that a court in one member state has to wait for the outcome of a case in another country if the same patent and the same facts are involved in a pending procedure.

A typical example is the RIM case in the US, where the Blackberry was very close to be wiped out of the US market with a US-wide injunction.

3. Out of court settlements for most of European players

There will be a strong pressure for most software players in Europe to bow to out-of court settlements. It can be expected that in most cases, the cost en entry to go to court will still be too high, especially for very small companies (1 to 10 employees), which represent the majority in the software sector.

The result of this will be the near obligation to sign unfavourable out-of-court settlements.

While large software companies has the means and the ability to defend themselves and go until the end of the court procedure, most of the european software players don't have the financial ressources nor the time to afford litigation in court. This is what we explained in the FFII's submission in July 2006 at the public hearing organised by the Commission on the consultation:

http://press.ffii.org/Press_releases/FFII_statement_given_at_EU_patent_policy_hearing

"[…] if you are an SME and accused of patent infringement, it becomes harder to defend yourself because litigation just became more expensive. And if you cannot defend yourself, you will be forced to license, even if the patent is weak or invalid."

4. Loss of legal certainty

It is merely impossible for software producers and users to know if the software they are producing/using/reusing is not infringing a patent. The whole software patent system makes the software development impossible, by creating a situation where producers and users are under a constant threat of being sued. It is not surprising to see that 85% of companies who were questionned in the issue in a survey in Germany fear that software patents might impede their work.

The copyright system provides a legal system where there are very few lawsuits, and when there might be infringement, those are most of time clear and sharp, and thus quickly resolved. This is the total opposite with software patents, since most of them are very broad and thus, which maximise the probability of infringement for the patentee.

Q3: Aside from the software patents element, what is your perspective on the UPLS as a whole?

I don't think it will fly. The main reasons are:

1. Location of the courts: member states don't agree for more then 30 years about where to locate the courts. The UPLS do not provide any indication where the courts will be located, and this is left out of the agreement because it is a too hot potato.

2. Lack of judicial review by the ECJ: I think several member states wants to see a judicial review by the ECJ, notably to avoid the risk of pro-patent courts that would not be "correctable" by a senior court. The US example is very telling about what the EU system would look like with the UPLS, without the fact that you would have a kind of US Supreme court to correct abusive behaviours.

3. Other legal problems, such as:
a. link with national constitutions: in most countries, parties have the right to appeal to a constitutional court, which won't be the case with UPLS cases; this is sensitive in the case where judges might be biaised in favour of one of the parties; you can think to the recent Piratebay case in Sweden where the judges are member of copyright lobby groups.
b. some constitutions of some member states require that the judge is of the nationality of such state: this is the case for France or Bulgaria for example.
c. languages: it is not given that citizens will be able to use their language to defend themselves.
d. impossibility for the EU to join the EPC: the amendments proposed by the Commission do not talk about how the EU (which is not a state as such) would have access to the International Court of Justice (which is only accessible to states member of the UN) in the Hague in case of disputes around the interpretation of the treaty.

Q4: What advantages and disadvantages can you foresee if the UPLS is implemented?

Advantages

  1. EU-wide injunctions and damages for patent holders
  2. EU-wide revocation of a patent for defendents
  3. Possible invalidation of software patents EU-wide (not very likely, but possible)
  4. High costs of litigation, good for the patentee to reach a deal out of court
  5. Uniform caselaw developed for software and biotech patents
  6. No diverging decisions over the same patent by multiple courts

Disadvantages

  1. No real legislator to correct decisions of such international patent court
  2. No divergence of decisions which might show to the legislator where to intervene
  3. Possible validation of software patents EU-wide (very likely)
  4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
  5. More incentives for patentees to litigate and enforce their patents
  6. Pro-patentee courts
  7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
  8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
  9. No judicial review to correct the eventual deviance of such specialized courts
  10. Potential higher costs of litigation for the patent holder

In its edition of IP Value 2007, the Intellectual Asset Magazine (IAM) was publishing an article about the Reform of European Patent System, where an expert (Alison Crofts from Dorsey & Whitney) mentions that the push for the EPLA is coming from the pro-software patents lobby:

The industry-based driving force behind the EPLA comes from the pro-software patent group as a way to ensuring that their software or potential software patents are fully enforceable across Europe.

Brussels, 12 May 2009 — The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention and won't be an EU institution. Those patent judges want to have the last word over European patent law."

Background

The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired by the now defunct European Patent Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software patents and substantive patent law. The centralised patent court won't be an EU institution.

The Court of Justice of the European Communities would only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, […] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community." The UPLS itself would not be a "institution of the Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.

On the other side of the Atlantic, specialized patent courts in the United States (CAFC) have watered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. The poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin drawing. The Supreme Court judges overturned the patent, heavily criticising the obviousness threshold of the specialized patent court: "This is gobbledygook. It really is, it's irrational. It's worse than meaningless."

Links

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

Hartmut Pilch, founder of the FFII, had the right vision in 2007 about the EU-EPLA project. Here is what he said about the future specialized patent court in Europe:

I don't think EU joining EPC would automatically mean that ECJ can intervene on substantive patent law questions.

If there is a ECJ above the EPJ, then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself or maybe to the Commission, member states and the EP.

After the EPJ system is already burdensome enough for SMEs. It's not reasonable to demand that there should be a second court above the EPJ at the European level.

In the EU Trademark, the ECJ is in charge, and it is acting in fact like a central EU trademark court. There is no separate ETJ.

Even if patent jurisdiction was handled by an ECJ patent senate, that would still mean concentration of judicial power in one single point of failure and elimination of the needed corrective of diversity. At best, the ECJ might be a little bit more independent from the EPO world than the currently envisaged EPJ, but it would still be a specialist court consisting of patent professionals.

If the EU joins the EPC, there is still no possibility of revising the EPC by co-decision procedure. Legislative power is, on the contrary, firmly placed into the hands of the Commission and Council only, in that case, and any ECJ pronouncement on the EPC would also be less meaningful than an EPJ pronouncement, because only the EPJ can speak for all the contracting states of the EPC.

Harmut Pilch, 2 May 2007

The Council seeks to legalise software patents with the Community Patent, says Mr Pellegrini, ex-advisor of Michel Rocard, former MEP and rapporteur of the failed software patent directive (french article published in Etoile: François Pellegrini, défenseur des libertés numériques et candidat aux élections européennes):

Comme dans toute organisation polycéphale, l'incohérence est de mise. Par exemple, le Parlement avait voté contre la brevetabilité logicielle en 2005, avec le soutien d'une partie de la Commission (la direction de la Société de l'Information), et contre une autre partie de la Commission (la direction générale du Marché Intérieur dirigée par le commissaire Mac Creevy, très critiqué pour ses positions extrêmement favorables aux grands groupes privés) ainsi que le Conseil (dans lequel règnent les "experts" missionnés par les offices de brevets nationaux). En 2009, rien n'a changé. Le Conseil et une partie de la Commission cherchent à légaliser les brevets logiciels illégalement accordés par l'Office Européen des Brevets (une institution extra-communautaire hors de tout contrôle) au travers de la mise en œuvre du "brevet communautaire" et des règles de brevetabilité qui l'accompagneraient.

Translation in english:

Like in any polycephalic organisation, incoherence happens. For example, the Parliament has voted against the software patent directive in 2005, with the support of a part of the Commission (Directorate General Information Society), and against another part of the Commission (Directorate General Internal Market lead by Commissioner Mc Creevy, heavily criticised for his positions extremely favourable to large private groups) and the Council (in which rules the "experts" of National Patent Offices). In 2009, nothing has changed. The Council and a part of the Commission seeks to legalise software patents illegaly granted by the European Patent Office (an extra-community institution outside of any control) trough the implementation of the "Community Patent" and the substantive patent rules that goes with it.

The ultimate goal of this move is to create central caselaw on software patents by a specialized patent court in Europe. With the recent caselaw of Symbian using ambiguous terms like "technical", it is highly probable that patent judges in a central validity court won't scrap all the software patents illegaly granted by the EPO:

The Court of Appeal in UK has allowed a software patent, possibly setting an important legal precedent. Last week's decision by the Court of Appeal has upheld a previous decision by the High Court that the Intellectual Property Office or IPO's refusal of a patent application by Symbian was not correct in law. The application was for a patent for an indexing system for library functions in an operating system. Accordingly, in considering the "technical effect" of the invention by smartphone OS vendor Symbian, the patent examiner had displayed an excessively "narrow" point of view. The Court of Appeal, under the leadership of Lord Justice Sir Robin Jacob, has thus wished to minimise somewhat the differences due to the so-called "absurd" discrepancies between the IPO and the EPO – the European Patent Office (EPO). The Court also wants to harmonise patenting practice in England and Wales with that on the Continent.

Experts at the European Commission are already saying that the link between this central patent court and the ECJ is important for groups like FFII to have hope in having the caselaw of this future court reviewed by an independent court. There were also proposals in the register of documents in the Council to make the Court of First Instance of the ECJ also specialized in patent law. Mr Judge Jacob is also a very good candidate to be part of the Central Patent Court, he is foreseen as the driver of the bus where all the other specialized patent judges in Europe will sit.

Mr Hartmut Pilch has already said after the rejection of the software patent directive, which was requested by EICTA and other pro-software patent lobby, that the debate will move to the Community Patent:

Question: Does the Community Patent restart the debate over patents for computer-implemented inventions (software patents)? Why or why not?

Answer: Pilch: It restarts the push for software patents, without a debate.[…] The Community Patent plan doesn't even mention the subject of software, although, make no mistake about it, software patentability is one of the main drivers of these plans.

A press article issued by Out-law just after the rejection of the directive also mentions the Community Patent as the next vehicule to validate software patents:

According to the Parliament, the Community Patent has been mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.

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