PATENT REFORM
Pagenberg says: “If the Court of Justice became the third instance in patent proceedings, any further work on the EEUPC could be stopped immediately; representatives in industry and litigators as well as judges would regard this as a ‘deal breaker’. Experienced judges in the first and second instances of the EEUPC don’t want their carefully draſted decisions examined by judges who have no patent experience and who take two or three years to decide a case. Patent litigation would become so unpredictable that one could as well flip a coin. Tis is no disrespect towards the judges; it would just be unfair to expect anything else in such a specialised area as patent law.”
Talent contest
As important as the structure of the EEUPC itself are the judges who will sit in and ultimately decide on proceedings. Te EEUPC draſt agreement proposes that “legally qualified” and “technically qualified” judges will sit in panels of three to two in the regional and local divisions.
A litigation system of this type would allow a choice of where to enforce or challenge a patent. Tis choice would depend on the aims of the litigation, which could be invalidity, high damages, or a long and costly trial. It is on this last point that ‘forum shopping’ has received unhealthy press.
Pagenberg says: “A form of forum shopping has become known as an ‘Italian torpedo’. A patent infringement action could be blocked and delayed in other EU countries if an action is filed in a ‘slow court country’.”
Although forum shopping can be abused, there are benefits to it that can be good for the litigation system as a whole.
Salmon says: “I think forum shopping is a good idea because I think it will create competition between courts, which can lead to improved court systems. Overall, there is going to be a court of appeal which will look to give consistency between the local, central and regional courts in relation to the interpretation and application of patent law. In order to get a court system that is responsive to its customers, competition between the courts, and therefore the ability to forum shop is, important.”
Supreme intervention
Many court structures have two tiers. One reason for this is to create a harmonised body of law and prevent conflict between decisions of the first instance courts, according to Salmon. “It’s then much easier for lawyers to predict what the outcome
will be, which gives you greater certainty,” she says.
She adds: “Te EEUPC will only have one tier of appeal and input from the Court of Justice is limited to points referred to it for clarification. Te Advocate General was concerned that the draſt agreement does not ensure that all principles of EU law are properly applied, and in particular, one principle of EU law is that a defendant is entitled to a trial in a language that he or she understands. Unless the draſt agreement is amended—currently, the central division would hear the case in the language of the patent, not in the language of the defendant—then that would be a principle of EU law that has been breached. According to the Advocate General, for something like that or for a complaint about the handling of an application for an EU patent in the EPO, there should be greater clarity that the EPO and the court will work in accordance with EU law.”
It seems that the Advocate General’s thoughts on EU law and the EEUPC are, to a certain extent, agreeable.
“Yes one must observe EU law,” says Pagenberg. “But this should be done as foreseen in the draſt, namely by reference rulings, as it is practised now by the national courts in other fields of law, and this is already enough of a burden on the Court of Justice.”
Te court seems to have enough on its shoulders as it is, but there is a worry that the Advocate General’s opinion leaves the door open for an even greater role in the new litigation system.
16 World Intellectual Property Review November/December 2010
Hammer says: “We would prefer to have specialist judges who have dealt with patent litigation before, and understand its complexities. While they don’t need to be technical experts in the precise subject matter themselves, it would help if they had some technical experience in the past and have an aptitude for being educated in a particular technology.”
To ensure that judges of suitable ability and experience sit on EEUPC cases, the draſt agreement proposes a training framework for judges that focuses on things such as “internships in national patent courts or divisions of the Court of First Instance hearing a substantial number of patent litigation cases; [and] technical aspects of patent law”.
“A theoretical knowledge of patent law and patent litigation is indispensible,” says Pagenberg. “But patent litigation can only be learned by doing.”
Tere is an increasing consensus that a European patent litigation system is necessary. Enforcement of the European patent is difficult, but the solutions proposed in the current Draſt Agreement for the EEUPC seem to cause more problems than they solve. It is important that the EEUPC is right for its users and customers. Te Court of Justice’s decision on the compatibility of the draſt agreement with EU treaties could be to send the draſt agreement back to the drawing board. Tat way, things could get fixed. But if that happens, the overriding worry is that the EEUPC may be disregarded altogether as another bold EU initiative that failed when the going got tough.
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