European Agreement on Patent Disputes

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The European Agreement on Patent Disputes , engl. The European Patent Litigation Agreement (EPLA), formally the draft agreement on the creation of a dispute settlement system for European patents , is a proposal for an agreement with the aim of agreeing an additional protocol to the European Patent Convention (EPC) that will transform the signatory states into an integrated judicial system with uniform rules of procedure and a common court of appeal.

Current situation

A granted European patent can currently be enforced in the individual contracting states. Third parties who want to remove a European patent after the nine-month opposition period has expired must bring an action for revocation in all the individual states in which they want to remove the valid patent.

Development and current status of the EPLA

In 2000, the member states of the European Patent Organization set up a “Dispute Resolution” working group to develop a proposal for such an additional agreement. At its fifth meeting on November 19 and 20, 2003, the working group agreed on the draft convention and the draft statute of a European patent court.

The 2003 EPLA proposal, revised in September 2005, provides:

  • a European Patent Court (EPG) and a European Patent Appeal Court, which would be responsible for infringement actions relating to European patents as well as for examining the validity of the European patent;
  • an administrative committee made up of representatives of the contracting states to oversee the European Patent Court.

Should the Convention come into force, this would establish a new international organization, comparable to the European Patent Organization itself. In terms of content, the court would be comparable to the United States Court of Appeals for the Federal Circuit (CAFC), which extends across all states .

This proposal was initially not pursued any further because a proposal for a Community patent was submitted within the European Union . This proposal would have provided for the establishment of a Community Patent Court as a body of the European Community . In the power struggle with the Commission, however, the Community patent failed due to the language regime, so that EPLA was brought back into play, even if that in connection with the London Agreement is similar to the Community patent with regard to the language regime.

The EPLA was promoted in particular by the European Patent Office , which is not a body of the European Union, as an alternative to the Community patent, as it would strengthen the institutional position of the European Patent Office vis-à-vis the bodies of the European Union.

In 2006 the European Commission launched a public consultation on future patent policy in Europe, in which the EPLA played the most important role alongside the Community patent , harmonization and mutual recognition of national patents. Both supporters and critics of the EPLA commented on the project at the following public hearing on July 12, 2006. In a resolution on October 12, 2006, the European Parliament called on the Commission to take part in further discussions on the EPLA at EU level However, it called for clear improvements in terms of democratic control, procedural costs and judicial independence and expressed its concern for patent quality. Federal Justice Minister Brigitte Zypries stated on June 25, 2007 that the "approach has been stuck since last autumn".

The discussion about the EPLA

Arguments of the EPLA proponents

Proponents of the EPLA believe that the current situation leads to high litigation and annulment costs for owners of patents and third parties, to legal uncertainty (due to national jurisdiction after grant, one and the same patent could be annulled in one country while it is maintained in another country will), cross-border disputes and forum shopping (a principle of bringing an action before the court that is most likely to be sympathetic to one's own cause). Proponents claim this Decrease to apply for European patents incentive and burdening the competitiveness of the European economy compared to, for example, the situation in the United States (see also the Lisbon Strategy the EU). Although there is a single European market , patents are not centrally enforceable in the EU. There are only the national patent systems and the European patent system based on the European Patent Convention, which provides for patents enforceable in the individual states. The EPLA is an alternative to the Community patent, which has been standing still for years and which aims to solve similar problems.

On July 12, 2006, Charlie McCreevy , European Commissioner for Internal Market and Services, concluded the aforementioned public hearing on future patent policy in Europe, saying that “ The European Patent Disputes Agreement is seen as a promising path to more uniform jurisdiction ".

Arguments of the EPLA critics

Critics of the EPLA argue that the real core objective behind the EPLA is the legalization of software patents and patents on business processes through case law . This reasoning is based on the assumption that the European Patent Convention forbids such patents, even if the European Patent Office has granted them since the mid-1980s. Critics also argue that the proposed European patent jurisdiction lacks independent judges and sufficient democratic control; while at the same time it leads to a drastic increase in patent litigation and the corresponding costs, not least because these institutions have to finance themselves.

Problems of jurisdiction in the European Union

It is unclear whether the individual member states of the European Union have the authority to set up such a dispute settlement system or whether the European Union is solely responsible (see Regulation (EC) 44/2001). In any case, the ratification of the EPLA by the member states of the European Union alone would weaken the position of the organs of the European Union, since all essential decisions in the patent area would then be made outside the institutions of the European Union.

France could also have constitutional difficulties signing and ratifying such a far-reaching convention.

Alternative: Unified patent litigation system (UPLS)

On March 24, 2009, the European Commission submitted a recommendation to the Council for a Unified patent litigation system (UPLS) that should combine the advantages of the ELPA and the Community patent (now EU patent). This system would provide for the creation of an EU patent and the establishment of a common patent jurisdiction based on the EPLA model, with patent jurisdiction open to all contracting states of the European Patent Organization. The first instance of joint patent jurisdiction would be decentralized, but there would be a central opposition body. The European Court of Justice would be responsible for monitoring compliance with European Union law . The UPLS should be agreed through a contract between the European Union and the contracting states of the European Patent Convention.

Individual evidence

  1. ↑ Website of the European Patent Office, “Legislative Initiatives in European Patent Law: EPLA - European Agreement on Patent Disputes”  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , queried on October 3, 2006@1@ 2Template: Toter Link / patlaw-reform.european-patent-office.org  
  2. ↑ "An infringement of the European patent will be dealt with under national law." (Art. 64 (3 ) EPC )
  3. ↑ EU press release: Commission submits proposals to create a Community patent court http://europa.eu/rapid/pressReleasesAction.do?reference=IP/04/137&format=HTML&aged=1&language=DE&guiLanguage=en
  4. ↑ European Commission, Directorate General Internal Market and Services, Consultation and Public Hearing on Future Patent Policy in Europe , consulted on October 3, 2006.
  5. ↑ European Commission, Directorate General Internal Market and Services, Public Hearing on Future Patent Policy in Europe , consulted on October 3, 2006.
  6. ↑ European Parliament, P6_TA (2006) 0416 Resolution of the European Parliament on future patent policy in Europe , consulted on October 30, 2006.
  7. ↑ Speech of the Federal Minister of Justice, Brigitte Zypries MdB, at the symposium of the Federal Patent Court on June 25, 2007 in Munich Archive link ( Memento of the original from September 28, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed on September 9, 2007 @1@ 2Template: Webachiv / IABot / www.bmj.gekko.de
  8. ↑ Charlie McCreevy, European Commissioner for Internal Market and Services, Concluding Remarks on the Public Hearing on the Future of Patent Policy , Public Discussion on Future Patent Policy in Europe , Brussels, July 12, 2006, consulted on October 3, 2006.
  9. ↑ Public hearing of the European Commission on future patent policy in Europe on July 12, 2006, Florian Mueller speech manuscript (English; PDF; 18 kB), requested on October 18, 2010
  10. ↑ Friends of a Free Information Infrastructure FFII eV The EPLA plan for software patents (English), requested on October 18, 2010
  11. ↑ wiki.ffii.org, FFII statement given at EU patent policy hearing (English), accessed on October 18, 2010
  12. ↑ Public hearing of the European Commission on future patent policy in Europe on July 12, 2006, Preliminary findings: issues for debate (PDF; 104 kB), page 14, requested on October 18, 2010
  13. ↑ Public hearing of the European Commission on future patent policy in Europe on July 12, 2006, Florian Mueller speech manuscript (English; PDF; 18 kB), requested on October 18, 2010
  14. ↑ Friends of a Free Information Infrastructure FFII eV The EPLA plan for software patents (English), requested on October 18, 2010
  15. ↑ Regulation (EC) No. 44/2001 of the Council of December 22nd, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . In: Official Journal of the European Communities . L, No. 12, January 16, 2001, pp. 1-23.
  16. ↑ IPR, Innovation and Economic Performance, OECD Conference, Paris 28./29. August 2003, page 5, second presentation slide (pdf, English; 2.0 MB)
  17. ↑ [1] UPLS press release 2009
  18. ↑ [2] (PDF; 167 kB) Commission recommendation for the creation of a unified patent court system UPLS 2009

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