An independent blog written by highly experienced Intellectual Property Lawyers providing a comprehensive overview of the Unitary Patent and the Unified Patent Court and discusses the latest news on the topic.
The Select and Preparatory Committees have published recently on the UPC website an explanatory note entitled “An Enhanced European Patent System” which aims at concisely presenting the UPC and UP to the public.
The UPC Blob will soon publish a post summarizing the main points of this note.
Last week, the European Parliament voted to complete the legal framework for the Unified Patent Court and the Unitary Patent (IP/13/750) (523 votes for, 98 against and 7 abstentions), updating EU rules on the jurisdiction of courts and recognition of judgments. In July 2013 the European Commission had in fact proposed an amendment to the Brussels I Regulation to clarify how its jurisdictional rules will work in the context of the Unified Patent Court, as well as how the rules of the Regulation should be applied in relations between the Member States, Parties to the Unified Patent Court Agreement and the Member States not party to the Agreement.
It is now for the Council of Ministers to formally adopt this text in order to become law. This is expected to happen at the Council meeting in June.
The training centre for judges who will work at the Unified Patent Court (UPC) has opened in Budapest. Launched March 13th, the centre will be based in government offices in the Hungarian capital.
The opening coincided with a two-day conference to discuss the centre, along with the unitary patent and UPC more generally. Zoltán Cséfalvay, minister of state of Hungary’s Ministry for National Economy, said EU member states participating in the unitary patent system had “unanimously” decided that judges should be trained in Budapest. Benoît Battistelli, President of the European Patent Office (EPO), in his address welcomed ” another step forward in putting in place a unified patent litigation system for the benefit of inventors and industry in Europe”. Paul van Beukering, Chairman of the UPC Preparatory Committee, on the other hand highlighted the crucial role of the UPC trained judges: “If we want the Unified Patent Court to be amongst the best patent courts in the world, we need the best judges we can get. They are the most important asset of the court. To achieve that, training is essential.”
A list of prospective judges has been drawn up, but none has been selected yet.
The Unified Patent Court website has published pictures of the training centre.
Ministers in the Council of the European Union have at the beginning of March (on March 4th) endorsed the compromise agreement on the European Commission’s proposal to complete the legal framework for Europe-wide patent protection, updating existing EU rules on the jurisdiction of courts and recognition of judgments (IP/13/750). It is the last missing part for the establishment of a Europe-wide patent protection. It is part of a package of measures recently agreed to ensure unitary patent protection in the Single Market (IP/11/470).
“By making changes to the rules on recognition of judgements, we are taking a further step on the way to the new Unified Patent Court beginning its work,” said Vice-President Viviane Reding, EU Justice Commissioner and Internal market and Services Commissioner Michel Barnier on March 4th “Today’s endorsement by Ministers confirms the commitment by Member States to set up the Unified Patent Court as quickly as possible and make unitary patent protection in the EU a reality. It is of crucial importance for Europe’s competitiveness and growth that our businesses and innovators benefit from patent protection at a lower cost.”
After Ministers reached a general approach at the December Justice Council (MEMO/13/1109), the European Parliament now needs to vote on its report in plenary, which is expected at the latest in April 2014. The Commission is also encouraging Member States to ratify the Unitary Patent Court Agreement as quickly as possible, and to complete the preparatory work required for the Court to become operational accordingly, so that the first unitary patents can be granted in the shortest possible timeframe.
The Agreement relies upon the “Brussels I Regulation” (Regulation 1215/2012) to determine international jurisdiction of the Unified Patent Court. The Commission has therefore proposed On July 26th 2013 an amendment to the Brussels I Regulation to clarify how its jurisdictional rules will work in the context of the Unified Patent Court, as well as how the rules of the Regulation should be applied in relations between the Member States, Parties to the Unified Patent Court Agreement and the Member States not party to the Agreement. This amendment has not however yet been passed by the European Commission.
Danes will vote in May 2014 on whether or not to join the EU’s Unified Patent Court.
As Denmark has an opt-out from EU legislation on justice, more than 80% of MPs have to support Denmark joining the Unified Patent Court. If the government fails to gather such support it must call a referendum.
However, while the Danish centre-left government is in favour of joining the Unified Patent Court, the anti-EU parties in the parliament, the semi-communist Red-Green Alliance and the right-wing nationalist Danish People’s Party, have been blocking an agreement.
The Danish People’s Party (right-wing nationalist party) had demanded that the government either set up new rules for EU migrants in an attempt to avoid ‘benefits tourism’ or promise a referendum on the banking union, which Denmark, as a non-euro country, still has to decide on, in return for backing the Unified Patent Court.
In August, Danish opposition leader Lars Løkke Rasmussen told Prime Minister Helle Thorning-Schmidt to give the Danish People’s Party “whatever it takes” to get the party to support the patent court. However, on December 19th 2013 Danish Minister for EU Affairs Nick Hækkerup confirmed that a referendum would take place on 25 May 2014, the same day as the European Parliament elections in Denmark.
On 20 November 2012 the European Parliament voted in favour of the Legal Affairs’ Committee amendments to the European Commission’s proposal to reform the Brussels Regulation. The draft legislation was sent to the Council of the EU for final adoption, which took place on December 06th 2013 at the Council of Justice Ministers.
The Council agreed on a general approach on a proposal for a regulation amending Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also known as Brussels I.
This general approach will constitute the basis for negotiations with the European Parliament in order to agree the final text of the regulation.
What needs to be amended?
Article 31 of the UPC Agreement states that the international jurisdiction of the Unified Patent Court is to be established in accordance with Regulation 1215/2012, or, where applicable, the 2007 Lugano Convention. Article 89 of the UPC Agreement links the entry into force of that Agreement to the entry into force of the amendments to Regulation 1215/2012 concerning the relationship between those two instruments.
It is therefore necessary to amend Regulation 1215/2012, in particular to insert provisions which determine how the Unified Patent Court can exercise its international jurisdiction.
The Commission submitted its proposal in July 2013. Although the main objective of the proposal is to regulate the relationship between Regulation 1215/2012 and the UPC Agreement, it also takes into account the existence of the Benelux Court of Justice and the international jurisdiction to be exercised by that Court in specific matters which are covered by Regulation 1215/2012.
Source: Press release of the Justice and Home Affairs Council meeting
The Presidency of the Council of the European Union published on November 18th 2013 a letter addressed to the Council of the European Union on the European Patent with unitary effect and the Unified Patent Court. In this letter it highlights the steps necessary for the implementation of the Unitary patent and unified patent court, describes those that are already in place and those that are planned in the next few months until early 2015 when the Preparatory Committee envisages an entry into operation of the UPC.
It articulated this letter around different sections and notably the “Progress in the different working areas” section, which identifies the main advances. For the legal framework the Presidency hence notes that the first stage of the Consultation about the Rules of Procedure launched by the Preparatory Committee had received over 100 submission that are now analysed in preparation of the second phase of the consultation in which the Legal Working Group will examine the comments including a public hearing to be held in the beginning of next year. The presidency indicates that on the basis of a revised draft prepared by the Legal Working Group the Committee aims to adopt the Rules of Procedure before summer 2014. Further more it lists other projects that will also be part of the UPC such as an arbitration and mediation centre a patent attorneys’ litigation certificate, a schedule of court fees and recoverable costs, rules governing the Registry and the registrar’s service, the rules on legal aid and the rules of the Advisory, Budget and Administrative Committees.
Another section of particular interest is the Human Resources and Training section, which explains how the UPC judges are being selected and will be trained. The Preparatory Committee launched in September 2013 a pre-selection procedure calling for the expression of interest of candidates, both on a part-time and a full-time basis, for legally qualified and technically qualified judges for the future UPC. Candidates had to submit their expression of interest by the 15 November to the chair of the Preparatory Committee. As explained by the Presidency, “the aim of the pre-selection procedure is to draw up a provisional list of suitable candidates, allowing the candidates if necessary to participate in the training program that is to be established for the preparatory phase”. It will thus ensure that a field of eligible candidates will be available for the formal appointment procedure to be launched subsequently. The Presidency further explains in broad terms what training the UPC judges will receive:
“The training for legally qualified judges will consist of advanced courses in patent law and patent litigation, possibly combined with mock-trials and internships at patent courts in countries experienced in patent litigation, as well as courses on the UPC Agreement and the Rules of Procedure. For technically qualified judges training will consist of basic concepts of patent law relating in particular to validity and basic concepts of civil procedure, as well as training on the UPC Agreement and the Rules of Procedure. Language training for both legally and technically qualified judges should allow judges to work on and participate in deliberations on a patent case in at least one language which is not their mother tongue.” (p.12)
Belgium is now one step closer to the ratification of the UPC Agreement. In fact a draft bill, instigated by the Ministers of Economy, Foreign Affairs and Justice, was approved on 24 October 2013 in the Council of Ministers, for the ratification of the agreement of the Unified Patent. The Council of Ministers has instructed the Minister of Foreign Affairs to carry out all necessary formalities to ratify the agreement.
Source: www.belgium.be
In France, on November 21st 2013 the French Senate adopted the bill authorizing the ratification of the Unified Patent Court Agreement. It had been presented to the French Council of Ministers on October 23rd 2013 and submitted to the French Senate the same day via the “accelerated procedure”. On November 21st 2013, a bill was thus submitted to the French National Assembly by the French Prime Minister on to complete the authorization of the ratification of the Unified Patent Court.
Source: Le Monde du Droit
The Permanent Representatives Committee (COREPER II) on November 27 in Brussels endorsed a compromise text of the proposed amendments to the Brussels I Regulation.
These amendments will ensure coherence between the Unified Patent Court agreement and the Brussels I Regulation, and will pave the way for entry into force of the so-called Patent Package (Regulation 1257/2012 and Regulation 1260/2012). In fact, in order for the UPC to come into effect, it is necessary to make an amendment to the recently recast Brussels I Regulation, which deals with the rules of jurisdiction and the recognition and enforcement of civil and commercial judgments, including intellectual property and patent litigation. The proposed amendment provides for the UPC to be recognised as a “Court” for the purposes of the Brussels I Regulation. In particular, it establishes its jurisdictional rules in respect of defendants domiciled in non-EU countries. The basis on which the amendment is made is under Article 81 of the Treaty of the Functioning of the European Union (TFEU). The intention is that the UPC will come into being shortly after the recast Brussels I Regulation in January 2015.
Source: Lithuanian Presidency website
On October 23rd, the French Prime Minister Jean-Marc Ayrault submitted to the French Senate a bill authorizing the ratification of the UPC Agreement. It now needs to be discussed by the National Assembly (French House of Representatives) before being finally adopted. The Bill was however introduced under the “Procedure Accélérée” (expedited procedure), which limits the number of times a Bill passes between the two chambers (the Assemblée Nationale and the Sénat) and is usually used to speed up a bill’s progress. This is particularly noteworthy as France is one of the three mandatory ratification countries for the implementation of the UPC regime.
The bill can be found on the French Senate website.