Harrie Temmink Industrial Property Unit European Commission Future of European Patent Litigation: the EC views BIICL, London, 22 January 2007 Harrie Temmink Industrial Property Unit European Commission

EC initiatives Commission Proposals on Community patent (2000) Council “common political approach” (2003) on, inter alia, jurisdictional arrangements Commission Consultation on Future Patent Policy in Europe (2006) highlighted two major issues – but also other matters: Languages (London Protocol, Community patent) Jurisdiction (EPLA, Community patent) Quality of patents, use of patents, alternative dispute resolution schemes, awareness raising… Commission policy line under preparation European Council Conclusions December 2006

Draft European Patent Litigation Agreement (EPLA) Optional agreement to the EPC creating a unified system for litigation concerning the infringement and validity of European patents Draft EPLA partly deals with matters covered by Community legislation in particular Regulation 44/2001, Directive 2004/48 “shared competence” EC and Member States Community involvement necessary EPLA can only be concluded as a “mixed agreement” with both EC and MS as parties Council must give negotiating mandate to Commission (Article 300 EC)

Commission proposals on the creation of a Community Patent Court for COMPATs (2003) Despite failure Council “common political approach” still interesting material Unitary EC court with exclusive competence for certain types of actions/claims Article 229A EC enables conferral jurisdiction on European Court of Justice in disputes relating to Community industrial property rights In first instance: creation Community Patent Court as a “judicial chamber” ex Article 225A EC; appeal Court of First Instance Specific rules on languages, qualification judges etc.

Way forward? Options include: a) “Pure” draft EPLA for European patents b) “Pure” Community Patent system for future COMPATs c) Community court system takes both future COMPATs/European patents d) EPLA court system takes both European patents/future COMPATs (with link to ECJ) Legal challenges Polarised positions Commission is reflecting on finding ways to bridge the various opinions