On Friday 29 June, the General Secretariat of the European Council announced that an agreement has finally been reached on the European Unitary Patent and Unified Patent Court.
Participating Member States agreed on 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.
The seat of the Central Division, along with the office of the President of the Court of First Instance, will be located in Paris.
However, given the highly specialised nature of patent litigation and the need to maintain high quality standards, it was agreed that thematic “clusters” should be created in two sections of the Central Division, one in London (to hear cases involving chemistry, including pharmaceuticals) and the other in Munich (mechanical engineering).
After decades of controversy and delay it therefore now seems that a Unitary Patent may become a reality.
A key rationale for a unitary system was to create a unified patent court to eliminate the risk of multiple patent proceedings, together with potentially inconsistent rulings in different Member States. However, exactly how the Unified Patent Court will operate with regard to Central and Local Divisions remains to be seen. The Secretariat has stated that patentees can bring an infringement action before the Central Division if the defendant is domiciled outside the EU, and if a revocation action is already pending before the Central Division the patentee may bring an infringement action to the Central Division. However, a defendant sued for infringement in a Local Division who is domiciled in an EU Member State will not be able to request a transfer of the case to the Central Division.
It is still some distance from being ratified: the proposal is due to go to the vote at the European Parliament in July 2012 following which the Council will adopt the regulations. It all remains subject to ratification by a sufficient number of Member States (at least 13).
How easy ratification proves to be will depend on the final detail of the regulations, including such issues as whether or not the Court of Justice of the European Union will have a role as an appeal court. The prospect of this has proved deeply unpopular as the CJEU is not a court with any expertise in patent matters. The Council has suggested that the relevant articles of the draft regulations relating to the CJEU be deleted, but where this finally rests will be one of several key areas of scrutiny.
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