2. Agreement on Patent Litigation. Jan Willems Still going strong.

3. Agreement on European Patent Litigation. Lyon 12-6-20022 State of affairs now. Future. History.

4. Agreement on European Patent Litigation. Lyon 12-6-20023 June 1999: Intergovernmental Conference Paris. History: Mandate: “to present a draft optional protocol to the European Patent Convention (EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common court of appeal.”

5. Agreement on European Patent Litigation. Lyon 12-6-20024 Working Party Subgroup Working Party Intergovernmental Conference London Oct. 2000 Textproposal in treaty language Working Party Intergovernmental Conference Place ?? Date ?? Intergovernmental Conference Paris June 1999 Working Party Text in treaty language Structure paper Renewed mandate mandate When ?

6. Agreement on European Patent Litigation. Lyon 12-6-20025 The European Patent Organisation. Who ?

7. Agreement on European Patent Litigation. Lyon 12-6-20026 The European Patent Organisation. States interested in the Litigation Agreement Who ?

8. Agreement on European Patent Litigation. Lyon 12-6-20027 What ?

9. Agreement on European Patent Litigation. Lyon 12-6-20028 Jurisdiction of the EPJ: exclusive jurisdiction as regards validity for the EPLP states exclusive jurisdiction as regards infringement or possibe infringement for infringer domiciled in EPLP states (non exclusive) jurisdiction for infringement in EPLP states by infringer domiciled elsewhere exlusive jurisdiction for infringement of European patent (and connected national patent) if all parties expressly have agreed

10. Agreement on European Patent Litigation. Lyon 12-6-20029 Important is that the European Patent Court will be designated as the national court with jurisdiction for cases concerning the (possible) infringement and validity of European patents. So that the Court can ask preliminary questions to the Court of Justice of the EEC for the territory of the EU member states And the supremacy of EU - law, laid down in the pre-amble of the EPLP, will be safeguarded.

11. Agreement on European Patent Litigation. Lyon 12-6-200210 Organisation of the EPC1: Allocation of cases according to rules of EU Regulation / Treaties of Brussels and Lugano.

12. Agreement on European Patent Litigation. Lyon 12-6-200211 Characteristics of procedure: Strictly structured and limited written phase. Strict case management by the court. Compulsory legal representation. Case ready for decision after one oral hearing. Loser pays costs of winning party. Possibility of provisional injunctions, restrictive orders and saisie. Sanction on court orders in form of astreinte. Only limited admissibility of new evidence and arguments in appeal.

13. Agreement on European Patent Litigation. Lyon 12-6-200212 Language regime: Language in second instance = language in first instance Language in first instance: Central division: language of the patent (application) Regional divisions: One of the official languages of the EPO, according to principles of London protocol on translations.

14. Agreement on European Patent Litigation. Lyon 12-6-200213 The Future... near and not so near.

15. Agreement on European Patent Litigation. Lyon 12-6-200214 Near future: Meeting of subgroup WPL July 2002 Presentation of text to working party. (Summer 2002) Presentation of text to Intergovernmental conference. (???) The agreement provides for a transitory period of 7 years, during which the European and the national system will coexist. During this period the plaintiff can choose.

16. Agreement on European Patent Litigation. Lyon 12-6-200215 Not so near future...

17. Agreement on European Patent Litigation. Lyon 12-6-200216 Threatening development: Judicial babylonia... How many supreme courts does one need?

18. Agreement on European Patent Litigation. Lyon 12-6-200217 European patent/Community patent both granted by the EPO, following only one application…. Community Intellectual Property Court EPLP CourtEnlarged Board of Appeal EPO ?

19. Agreement on European Patent Litigation. Lyon 12-6-200218 Three possible ways of harmonising: 1. Separate courts but manned by same judges. 2. EU court made acceptable for non EU-states. 3. EU accedes not only to EPC but also to protocol.

20. Agreement on European Patent Litigation. Lyon 12-6-200219 Advantages of third option: no need waiting for ratification of Nice-treaty no conflicts over competence of member states no shared backlog of CFI uniform judicial proceedings, also in case of amendments rules of procedure.

21. Agreement on European Patent Litigation. Lyon 12-6-200220 What are we waiting for ? 1978 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 The community patent...

22. Agreement on European Patent Litigation. Lyon 12-6-200221 Perhaps we should stop just waiting... And look for an interim solution E.g. along the lines of the articles 142 - 149 EPC.

23. Agreement on European Patent Litigation. Lyon 12-6-200222 Artcles 142 - 149 EPC: Give member states the option to have patents as unitary patents And only a common designation

24. Agreement on European Patent Litigation. Lyon 12-6-200223 Of course these articles were meant for the CPC …. that came to nothing because of the translation problem and the problem of the adjudication of the judicial system. Do these problems still exist after twenty years ???

25. Agreement on European Patent Litigation. Lyon 12-6-200224 The problem - solution approach: ProblemSolution ? costs of translation judicial system no substantive law for unitary patents that are not community patents London protocol on art. 65 EPC protocol on litigation in advanced stage of preparation litigation protocol harmonizes to large extent the substantive law

26. Agreement on European Patent Litigation. Lyon 12-6-200225 Conclusion: The problems are solved for those states that: Sign the London protocol on article 65 EPC Sign the Agreement on Litigation Conclude an agreement as meant in articles 142 - 149 EPC.

27. Agreement on European Patent Litigation. Lyon 12-6-200226 So, what are we waiting for ? Let ’s build our European patent building!

28. Agreement on European Patent Litigation. Lyon 12-6-200227 Protocol on Litiga- tion Protocol on trans- lations Protocol on art. 142- 149 EPC E P C C u r i a

29. Agreement on European Patent Litigation. Lyon 12-6-200228 All is well that ends well!

30. Agreement on European Patent Litigation. Lyon 12-6-200229 Thank you for your attention ! Questions ?