EU Patent Courts Controversy

As previously reported a key obstacle to implementation of the unitary European Union Patent has been disagreement as to the location of a central court to deal with litigation stemming from the EU patent.

Now, in a classic EU compromise, the EU Council has issued their conclusions in which the tipsters’ favourite, Paris, will host the Central Division of the Unified Patent Court, but a London branch will deal with chemistry and a Munich branch will deal with mechanical engineering. The key text is in section 3:

            “Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.

             Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).”

One major area of disagreement remains: the controversial Articles 6-8 of the Regulation which if implemented would give litigants the automatic right to refer questions of substantive patent law to the Court of Justice of the European Union (CJEU) by operation of Article 267 TFEU.

This proposal has been widely condemned by IP practitioners because the CJEU lacks technical expertise to deal with complex patent cases. The EU Council has (somewhat tentatively) proposed to delete the offending Articles:

            “We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.”

The European Parliament disagrees with this proposal and has postponed (again) a key vote on the Unitary Patent Package which had been scheduled for 4 July 2012.

It is also not yet known whether the Unified Patent Court will adopt a bifurcated approach to patent litigation, in which patent infringement is decided in separate proceedings from  patent validity. The German and Austrian courts use bifurcation, but the courts of the UK and France (and most other EU member states) do not.