Brussels, 05/02/2008 (Agence Europe) - Work on improving the European patent system is increasing at the Council, in keeping with the November 2007 Competitiveness Council's wishes (EUROPE 9549). The Slovenian presidency has planned nine work groups to this effect between now and June, but it has not included the dossier on the agenda of the ministerial meetings. This work is being closely followed by the European Commission and aims to gradually but comprehensively make progress on: the architecture of the legal system in charge of settling patent disputes at European, then Community, levels (EUROPE 9524); internal procedures for this legal system and the elaboration of a legal instrument for creating this system; and the relaunch of negotiations on the Community patent. Sights are firmly trained on 2008 for this goal.
At the end of January, national experts at the Council examined a Slovenian presidency document on procedures applicable to Community jurisdiction for settling European patent litigation cases. Discussions focused on all the provisions defining such jurisdiction, such as the power of injunction, procedures, proof, damages and interest. Initially perceived as techniques, these provisions are based in the legal culture of each member state, with one camp of countries that prefer oral procedures and the other that prefer them written. They also have an influence on the inherent costs of the procedures. Discussions revealed that most member states are prepared to move forward in these negotiations. Spain is still very sensitive about the patents issue resurfacing and called for the architecture of a legal system to be clearly explained before continuing discussions on system procedures.
Do procedures being discussed differ from those used at the European Court of Justice (ECJ)? One participant explained that the fact that they involve “litigation between private individuals” and should be adapted to the specificity of patents constitutes an important development. According to the Slovenian presidency document, of which EUROPE obtained a copy, rules of procedure will have to be based on a balance between their need for efficiency, their dissuasive character and their cost. It will also be necessary to prevent abusive use by patent holders who try and use them to hinder competition. The future judicial authority may also have to order the seizure of goods that infringe patent rights, or freeze certain financial assets held by a company that has been found guilty of infringing intellectual property legislation. As regards damages and interest, the document distinguishes between two ways of working out amounts to be paid to the successful legal party: recognition of all factors linked to damages (illegal profits used for abusive patent usage, lost income for patent holder, non-pecuniary losses etc) or a lump sum at least equal to the licence would have been paid for legally using the patented invention.
Another tough subject to come is the legal instrument needed for setting up the Community legal authority in charge of settling patent litigation. A draft Slovenian presidency compromise is expected next month. Divisions could reappear on this point and could pit member states supporting the European Patent Litigation Agreement (EPLA) against those calling for the creation of a legal authority under the jurisdiction of the ECJ (EUROPE 9400). Opinions from several member states, including France, believe that the legal instrument should be based on Article 225-A of the European Treaty, which authorises the Council to create specific judicial panels, such as the Public Function Tribunal (EUROPE 9314). Given that patent litigation is currently under a national remit, an international convention could prove necessary if EU member states are to possibly be joined by European Patent Office third country members that are in charge of granting European patents, and which confer this competency to the embryonic Community jurisdiction. It is not certain whether the Slovenian presidency and European Commission are on the same track, possibly preferring a more intergovernmental approach.
In the first half of 2008, the Slovenian presidency is expected to draw up a draft compromise on the Community patent. It should be remembered that the Competitiveness Council in spring 2004 had indefinitely postponed work on this point (EUROPE 8709). As well as the question of the legal value of patent translations, there will also be the issue of the competency of the future Community jurisdiction in charge of settling Community patent litigation. (M.B.)