Efficient and Balanced European Patent System Comments from U. S Efficient and Balanced European Patent System Comments from U.S. and Japanese Experiences Toshiko Takenaka, Ph.D. Washington Research Foundation Professor of Technology Law University of Washington School of Law (Seattle, Washington) U.S.A.

European Patent System European Patent Convention 1973 Uniform Patent Granting Procedure: EPO Harmonization of Patentability in Member States Article 69 Extent of Patent Protection 2000 Revisions Community Patent Convention 1970s-80s Failure to Enter Into Effect Harmonization of Indirect infringement and limitations in Member States EU Regulation 2000 Another failure - Community Patent Regulation Proposal Enhanced Cooperation Procedure

European Patent System EU v. EPO European Patent Litigation Agreement 1999 EPO initiative EU Patent Court Proposal 2009 EU initiative ECJ 9 March, 2011 Compatibility of EU Patent Court Proposal and European Treaties

U.S. Experience Federal Law: Patent Statute Preemption Doctrine Creation of Uniform Appeal Patent Court Court of Appeals for the Federal Circuit (1982) Increased Intervention of U.S. Supreme Court Pilot Program: Concentration of Patent Cases to at least six district courts (2010)

Japanese Experience Patent Law Creation of Uniform Appeal Court Pro-Patent Policy: Basic IP Law (2002) Annual Review: National IP Strategies Creation of Uniform Appeal Court Intellectual Property High Court (2004) Concentration of patent cases to Tokyo-Osaka High Court (2003)

Effective and Balanced System Pros of Unitary System: Cost Saving Saving Costs Patent Document Uniform Language: English Patent Court Venue: Convenient for non-European parties Expertise: Patent specialist judges Legal Certainty: A uniform Interpretation through case law One Stop Enforcement Forum: Bifurcation System

Effective and Balanced System Cons of Unitary System Increase in Administrative Cost Patent Document Uniform Language: Fairness Patent Court Venue: Possible access problem Bias: Specialists v. Generalists - Role of ECJ Legal Certainty: Divided Court One Stop Enforcement Forum: Coordination with EPO

Does Investment Make Sense? No Forum Shopping - Lack of Competition Current System German courts attract patent litigation because of their expertise and effective procedure New System Enhancement of European Interests? Who will be the main users? Role of National Courts Should remain taking an important role More options: EU wide or national only

Challenges New Innovations: Inventions in the Information Age Software/Business Model Inventions DNA inventions New Business Models Non Practicing Patentees (Patent Trolls) Open Innovations: Universities Old but Renewed Debates Does Patent System Really Promote Innovations? IP with licenses v. No IP for inventions which need investment for commercialization

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