As France’s six-month presidency of the EU begins this month, there remain significant political obstacles to agreement on a pan-EU litigation treaty, with some countries (such as Spain) apparently unwilling to sign up to it.
That has led to speculation that it will be impossible to find a system on which all 27 EU member states can agree.
Instead, it is increasingly likely that a core of countries will take part in the treaty, with others able to join at a later date if it proves successful.
The discussions for a pan-Europe patent system focus on a draft agreement, which envisages having a number of local and regional chambers, with one centralized chamber. Each would have three judges.
IP is not listed as one of the four priorities of the French presidency, and there remain divisions within the government over the desirability a European patent litigation system.
But sources close to the French presidency have told Managing IP that work on the agreement will be continued during the next six months.
Eight meetings of the Council’s IP working group have been scheduled, the first of which will take place later this month, as well as a high-profile conference on IP to be held in Strasbourg in October.
It is possible that work will focus on procedural rules for the court – which are likely to be less controversial than the text of the treaty.
One of the main difficulties still to be overcome relates to the role of the European Court of Justice (ECJ).
France wants the Court to be able to hear appeals in all cases – a cour de cassation.
However, other member states, as well as stakeholders, have indicated that such a hands-on role for the court is unacceptable, and believe it should only be consulted when the treaty needs to be interpreted. One participant in the discussions described this issue as a “dealbreaker”.
The Commission is likely to ask the ECJ’s opinion on the proposed treaty later this year.
As the agreement has been drafted in the form of a treaty, rather than an EU regulation, it will be possible for non-EU EPC states, such as Switzerland, to join the system. It will also be possible for EU member states to opt-out.
The ECJ’s ruling, which will probably take at least six months to be decided, is likely to address the feasibility of such a system under European law, and its relationship with the European Patent Convention.
That timing means that, whatever progress is made during the French presidency, there will be no final agreement until well into 2009.
It is understood that the next two EU presidencies – the Czech Republic and Sweden – are already engaged in the discussions, along with the Commission and stakeholders.
The Barroso Commission ends in October 2009, which may impose a deadline on negotiations, as it will be hard to restart discussions under a new Commission.
Another potential obstacle is that Commissioner McCreevy, who heads the internal market directorate, may have lost political capital after his country, Ireland, voted “No” in a referendum on the Lisbon Treaty, thus jeopardising EU political reform.
At the end of June, the group of patent specialists – including lawyers, judges and industry representatives – that is being regularly consulted on patent reform met with the Commission and representatives of the outgoing and forthcoming EU presidencies to discuss progress on the patent litigation agreement.
Sources close to the discussions told Managing IP that bifurcation (where German courts hear validity and infringement separately) remains controversial, as Germany is unwilling to give it up.
However, compromise proposals would allow local divisions of the court to retain bifurcation, effectively letting the market decide: if plaintiffs want bifurcation, they will be able to go to courts that offer it. If not many parties do so, then bifurcation will die out. This compromise may be acceptable to all parties.
The group also discussed having a parallel system allowing small and medium-sized parties to have local disputes heard outside of the EU patent litigation system.
Another point of discussion was whether revocation actions should be heard only by the central chamber, or be allowed to be pulled to local chambers to be heard alongside injunction requests.
A revised draft agreement on the EU patent judiciary is expected to be published within the next few days, in time for the next working group meeting towards the end of this month. The previous draft, known as 9124/08, was published on May 14.
Another meeting of the experts group is likely to be held in September this year.
