28 September 2011

Polish Presidency Submits New Draft agreement on a Unified Patent Court to Friends of Presidency

In a recent article titled "New Developments Concerning the EU Unified Patent Court", the IP law blog ksnh::law refers to the revised Presidency text of the "Draft agreement on a Unified Patent Court and draft Statute" (Document 13751/11), which was submitted by the Polish EU Presidency to the so called "Friends of the Presidency Group" on September 2, 2011 and then published on September 23, 2011 (see Documents 13751/11 COR 2 and 13751/11 COR 1). 

The amendments of this document over earlier drafts address the compliance with the EU Treaties as set out in opinion 1/09 of the Court of Justice of the European Union (CJEU), i.e.
  • the limitation of participation (thus excluding the participation of third states as well as the EU) and 
  • the strengthening of the obligation of the Unified Patent Court to comply with EU law and request preliminary rulings, if necessary, including through the introduction of sanctions.
Besides the analysis given in the above-references ksnh::law posting, the European Patent Lawyers Association (EPLAW) provides a very own assessment, according to which there are concerns that speed is put above careful analysis and reflection and that an easy compromise has become the only goal, since the propsed text alegedly has a number of serious shortcomings having negative economic impact for European applicants:
  • Inexperienced local divisions reduce quality and efficiency;
  • Court fees must be clarified;
  • Appointment of judges with proven experience unclear;
  • No option for parallel national litigation of EP patents;
  • Longer transitional period and more opt-out/opt-in flexibility required; 
  • There should be no EU rules of patent infringement;
  • Rules of procedure should be clear before Agreement is signed;
  • No provisions relating to SPCs and on legal privilege;
  • Termination provisions required;