EUROPEAN PATENT COURT
UK professionals are leading opposition to the proposals in their current form. Unless changes are made, many UK professionals will be pressing the UK government not to sign up to the system. Tis, together with the UK’s frosty relationship with the EU, makes it most unlikely that the UK will be awarded the central division of the UPC.
The role of the CJEU
Te unitary patent proposal gives the Court of Justice of the European Union (CJEU) jurisdiction over patent infringement issues. Te proposal for the UPC requires it to give binding effect to decisions of the CJEU. Terefore, in practice, all decisions on patent infringement will have to be made by the CJEU.
Te CJEU has long dealt with trademark cases for the EU, but without any great credit, and it is known for its delays. Te CJEU has no expertise or experience in patent infringement matters and it seems strange to favour it at the expense of very good patent courts in the UK and other EU countries. Former Lord Justice Sir Robin Jacob., until recently a member of the English Court of Appeal, is well known and well respected in IP circles throughout the EU. He has stated that he knows of no-one in favour of the CJEU having a role in patent litigation.
“GIVEN THAT GERMANY ALREADY HOSTS THE EPO, IT WOULD BE FAIR FOR THE CENTRAL DIVISION OF THE UPC TO BE LOCATED IN THE UK.”
The scope of the UPC and the transition
Te UPC proposal would give it exclusive jurisdiction over matters relating to unitary patents, Supplementary Protection Certificates (SPCs), European patents already granted which are still in force when the proposals come into effect, and all current and future pending European patent applications. Tere will be a miserly five-year period during which patentees can choose to use national courts, rather than the UPC, for disputes relating to European patents. Tereaſter, unless the patentee has filed an opt-out during the transitional period, he will be
forced to use the UPC. Of course, if the national courts wither and die because of the UPC, any such opt-out would become useless.
Tere is a fundamental objection to the proposal which seeks to force patentees to use an unproven court of unknown expertise, certainly as far as the CJEU is concerned, for European patents which were filed long before these proposals were even mooted.
Bifurcation and languages
Te Court of Appeal of the UPC, which is to be awarded to Luxembourg, and local divisions of the court of first instance, can choose the language in which to hear the case. Tis opens the likelihood that two instances might hear the case in different languages. Te possibility also exists that infringement and validity might also be heard by different courts and in different languages. Tis is fraught with danger, given that the exact use of precise language is at the heart of a well draſted patent specification.
In Germany, infringement cases and cases involving the validity of a patent are heard in different courts. Tis makes it very easy for a patentee to get an injunction. It also opens the way for a patentee to argue for a broad interpretation of a claim to ‘catch’
32 World Intellectual Property Review January/February 2012
www.worldipreview.com
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