Easy peasy

Is it an accident that the acronym for the latest version of the proposed European and Community Patent Court is ECPC, a close homophone of "easy peasy"? Document 13607/09 published yesterday ahead of next week's discussions by the Working Party on Intellectual Property (Patents), describes the current thinking with regard to a court in its Annex:

"THE EUROPEAN AND COMMUNITY PATENTS COURT

4. The ECPC shall have exclusive jurisdiction in respect of litigation related to the infringement and validity of Community patents and European patents.

5. As outlined in the Draft Agreement, the ECPC shall comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance shall comprise a central division as well as local and regional divisions.

6. The Court of Justice of the European Communities shall ensure the principle of primacy of Community law and its uniform interpretation [Here's hoping that the Court can speed-read its way through patent law and emerge with some mastery of it].

THE COMPOSITION OF THE PANELS

7. In order to build up trust and confidence with users of the patent system and to guarantee high quality and efficiency of the ECPC's work, it is vital that the composition of the panels is organised in a way which makes best use of available experience with patent litigation among judges and practitioners at national level through pooling of resources.

8. All panels of the local and regional divisions and the central division of the Court of First Instance shall guarantee the same quality of work and the same legal and technical expertise [This is a lot to guarantee. Can it confidently be said of the EPO or OHIM Boards of Appeal, for instance, that they have achieved "the same quality of work and the same legal and technical expertise" in the period since their establishment?].

9. Divisions in a Contracting State where, during a period of three successive years, less than fifty cases per year have been commenced, shall either join a regional division with a critical mass of at least fifty cases per year or sit in a composition whereby one of the legally qualified judges is a national of the Contracting State(s) concerned and two of the legally qualified judges come from the pool of judges to be allocated to the division on a case by case basis [Will this enable the 50+ judge to fulfil a didactic role, or will he be diluted by his juniors?].

10. Divisions in a Contracting State where, during a period of three successive years, more than fifty cases per calendar year have been commenced shall sit in a composition whereby two of the legally qualified judges are nationals of the Contracting State. The third legally qualified judge, who will be of a different
nationality, will be allocated from the pool of judges on a yearly basis.

11. All panels of the local and regional divisions shall comprise an additional technical judge in the case of a counterclaim for revocation or, in the case of an action for infringement, when requested by one of the parties. All panels of the central division shall sit in a composition of two legally qualified judges and one technically qualified judge. The technically qualified judge shall be qualified in the field of technology concerned and be allocated to the panel from the pool of judges on a case by case basis [If handled properly, this could be quite effective].

12. The allocation of judges shall be based on their legal or technical expertise, linguistic skills and proven experience.

JURISDICTION IN RESPECT OF ACTIONS AND COUNTERCLAIMS FOR REVOCATION

13. In order to ensure that local and regional divisions work in an expeditious and most efficient way, it is vital that the divisions have some flexibility on how to proceed with counterclaims for revocation. Direct actions for revocation of patents shall be brought before the central division. A counterclaim for revocation can be brought in the case of an action for infringement before a local or regional division.

The local or regional division concerned may proceed with the counterclaim for revocation or refer the counterclaim to the central division and proceed with the infringement action or stay those proceedings [Naturally, considerations of speed and timing are paramount for many litigants, and it is as much by its responsiveness in these matters as by the quality of final decisions that the system will be judged].

It may also, with the agreement of the parties, refer the case for decision to the central division.

LANGUAGES OF PROCEEDINGS

14. The Draft Agreement, the Statute and the Rules of procedure shall provide for arrangements which will guarantee fairness and predictability of the language regime for the parties [So long as language is a procedural issue, it shouldn't cause any problems. It's only when people start using it that difficulties arise]. Furthermore, any division of the ECPC shall provide translation and interpretation facilities in oral proceedings to assist the parties concerned to the extent deemed appropriate.

15. The language of proceedings of the local and regional divisions shall in general be the language(s) of the Contracting State(s) where they will be established. Contracting States may however designate one or more of the official languages of the European Patent Office as language of proceedings of the local or regional division they host. The language of proceedings of the central division shall be the language
of the patent. The language of proceedings of the Court of Appeal shall be the language of the proceedings at the First Instance. It shall however be possible, for reasons of convenience and fairness to the parties, for the panels in local and regional divisions to, under particular circumstances, decide on the language of the patent as the language of proceedings at the request of one party, after having heard
the other parties. Such circumstances could for instance be when one of the parties is a small or medium sized enterprise or a private party that has no establishment or domicile in the Contracting State where the relevant division is situated. Such an order may always be appealed separately".