"In advance of the 30 and 31 May meetings of the European Union’s Competitiveness Council, the EU Presidency presented a note to the Council. The note attached a non-paper of the European Commission setting out a credible strategy to revise Europe's patent litigation system, following a recent opinion from the Court of Justice of the European Union (CJEU) regarding the compatibility of a draft international agreement with the EU Treaties.
In response to the CJEU's concerns, the non-paper proposes that the Commission have the right to bring proceedings against Member States, should the new patents court fail to refer EU law issues to the CJEU, and also that private parties could claim damages from Member States for breaches of EU law. Subject to these amendments, the Commission believes that no further changes are required to the draft agreement to ensure compatibility with the EU Treaties.
The international agreement would establish a court system with jurisdiction over a new European patent having unitary effect in multiple EU Member States. The same court would also have jurisdiction over ‘classical’ European patents. The Commission has recently published two draft Regulations setting out how the unitary patent will work. Such a unitary patent is anticipated in the existing European Patent Convention (EPC), hence no new EU patent right is required. The Commission does not propose that the EU become a party to the new international agreement, nor accede to the EPC. The international agreement would now be restricted to EU Member States, thus placing the new courts firmly within the EU’s judicial system. Any new EU Regulations or international agreement is likely to make it clear that there is no intention to either expand or restrict the jurisdiction of the CJEU.
The 30 and 31 May discussions pave the way for further work with the Council aiming to agree a general approach at an extraordinary Competitiveness Council meeting to be devoted to unitary patent protection on 27 June. It is hoped that the text of the two parallel EU patent Regulations could be agreed during the Polish Presidency of the EU (the second half of 2011), with the international agreement agreed during the Danish Presidency (the first half of 2012). The unitary patent Regulations would not be adopted without the international agreement, and it may also be necessary to amend other EU Regulations. This timeline reflects the Commission's goal of issuing the first EU-wide patents in 2013, however, one should not underestimate the level of technical legal detail (such as a regime for the service of documentation) that still needs to be agreed before that longstanding goal is finally achieved (discussions having begun nearly 40 years ago).
 Creating a Unified Patent Litigation System - Orientation debate (Council of the European Union document 10630/11)
 Opinion 1/09 of the Court of Justice of the European Union
 Draft Agreement on the European and Community Patents Court and Draft Statute (7928/09)
 Such as the Treaty on the Functioning of the European Union
 Proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (9224/11) and Proposal for a Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (9226/11)
 See Article 142 EPC
 Such as Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
 COM(2011) 206 - Key action 3".
Wednesday, 1 June 2011
That non-paper on the Unified Patent Litigation System: a helpful explanation
It's not often that you find footnotes in a PatLit piece, but this neat summary by Will Corbett and Kevin Mooney (Simmons & Simmons) has that slightly scholarly air to it. Thanks, Will and Kevin, for shedding some light on the darkness that is the recent non-paper: