After last week's EU Competitiveness Council meeting ended with rather positive news, stakeholders and interest groups increasingly launch attacks on the suggested EU Patent Package (see e.g. here and here). In two recent articles titled
- Critical Position Paper of International IP Federation FICPI on Unitary Patent and Unified Patent Court, and
- European Patent Lawyers Consider Proposed Unified Patent Court an 'Unwanted Present for Industry'
As both organisations openly criticise the drafts lying on the table right now and agree to better "go slowly" and to take a few more months to get it, they take rather different positions regarding one essential issue, namely the question of whether or not Articles 6 to 8 (substantive patent law w.r.t. infringement etc.) should remain in the Regulation for a Unified Patent, since leaving the Regulation as it is now would mean that the CJEU will have a say in substantive patent law in future.
While FICPI thinks the following:
[1.2.2] Whereas FICPI cannot see a realistic alternative to a certain involvement of the CJEU also in questions related to infringement cases [...] when a pan-EU harmonisation of patent jurisdiction should be achieved within the EU, FICPI realizes that there could be problems in practice if the effects (and limitations) differ between the UPR and the UPC Agreement.[...]
FICPI therefore strongly recommends that the authorities involved in drafting the final versions of the UPR and the UPC Agreement safeguard the unitary effect of the patents, including any limitations to the patent rights.
[2.9] Certain stakeholders have objected to the involvement of the CJEU in patent matters. [...] However, FICPI also points to the fact that in the legal system of the EU, there is no supranational authority other than the CJEU that could ensure pan-EU harmonisation (by way of referrals under Art. 267 TFEU) in contentious legal matters. [...] If therefore a pan-EU harmonisation of patent jurisdiction is wished, any practical solution thereto would have to involve the CJEU by way of referrals under Art. 267 TFEU. If the necessary Regulations and Agreements are drafted with the intention of keeping away as many potential questions form the CJEU as possible, the quality of these Regulations and Agreements will suffer [...].
FICPI therefore thinks that [...] it should be aimed to make the CJEU a competent final authority also in patent matters and IP matters in general and to provide the CJEU with the means to achieve such goal.
In this regard, FICPI has suggested in the past that the CJEU should include chambers specialised in intellectual property law [...].
EPLAW strongly argues in the opposite direction:
First of all, the question of what constitutes infringement is to be made will not be decided by the new Unified Patent Court which be obliged to refer many questions of interpretation to the European Court of Justice. In other words: the new Unified Patent Court cannot decide on its own the subject matter it is created for – a rather alarming result given the uncertainty, delay and cost that this will create for future litigants, since judges of the European Court Justice have no patent experience. [...]