Europe has debated establishing a single EU Patent System for more than four decades. Today, 29 June 2012, leaders of the European Union have finally reached an agreement to establish a new patent court with headquarters located across Paris, London and Munich. Within the package, there is also a new form of European patent.
The announcement is a true landmark for technology businesses. At last, it will be possible to resolve disputes across Europe through a single court system. Furthermore, a new European patent will make it easier and significantly cheaper to get patent protection with unitary effect in most countries of the EU.
Structure of the Court
The new patent court will comprise a Court of First Instance composed of a Central Division, as well as local and regional divisions, situated in the Member States. The Central Division will have its main seat in Paris with subdivisions located in London for cases in the fields of life sciences, chemistry and human necessities, and in Munich for advanced engineering and resources efficiency.
Cases brought against patents concerning validity or declarations of non-infringement will need to be brought in the Central Division, while cases of infringement brought by patent holders need to be commenced in local divisions.
The seat of the Central Division has been the last step holding up a deal to implement the new system, with competing claims from the three winning cities. In the end, a political compromise was reached.
One complex aspect of the operation of the new system will be the relationship and interplay between infringement cases brought in local divisions and validity cases in the Central Division. The cases can either be joined together, or they can be heard separately under a “bifurcated” approach currently followed in Germany. The decision to split the Central Division along industry lines will certainly complicate this already complex interplay.
Some controversial aspects remain. The system allows the application of different approaches on bifurcation, which creates uncertainty and which some claim will encourage a wave of actions to be brought in Europe by non-practising entities. Certainly the complexities of the system will be a playground for strategists.
In addition, the new court and the EU Patent will fall under the umbrella of the Court of Justice of the EU (CJEU). Critics argue that the non-specialist judges of the CJEU and the long delays in hearing cases there could threaten the effectiveness of the regime.
The single court certainly offers great promise for European technology businesses, but the final verdict on its success or failure in meeting such promise will have to wait until the system has been running for a few years.
In the meantime, lawyers across McDermott Will & Emery’s Paris, London and Munich offices are examining the details of the court and its operation, and plan to offer clients and contacts the opportunity to share their observations and views in detail over the coming weeks.