tag:blogger.com,1999:blog-1949935810569534550.post4583639410386275729..comments2023-08-17T14:09:24.945+01:00Comments on PatLit: the patent litigation weblog: UPLS dead and buriedUnknownnoreply@blogger.comBlogger4125tag:blogger.com,1999:blog-1949935810569534550.post-26620649017741564782011-03-12T08:34:56.396+00:002011-03-12T08:34:56.396+00:00I have already responded to Jason Burwell's fi...I have already responded to Jason Burwell's first suggestion on the IPKat blog. On the specific idea of dropping the 'EU' element of the proposed patent court, does this make sense given that the EU patents would be granted through the European patent system anyway? And if it could be done, wouldn't this kill the EU patent idea, since holders of EU patents would be exposed to multiple litigation and holders of other European patents would not? <br /><br />In my reading the EU court objects in principle to any international court ruling on EU law issues. It confined itself to ruling on the EU patent but why would the reasoning be different for any other international court dealing with any other issue where EU law is involved? The EU court expressly said that providing for a preliminary ruling procedure for the international court was not good enough. <br /><br />On the other hand the Court expressly approves of Member States (but not involving non-Member States) agreeing to set up a common court among themselves. So that is the way forward, it seems to me. I see no reason that common court could not have jurisdiction over EU and European patents alike. <br /><br />Also the idea of a Regulation for the patent has already been approved by the EU this week. But it seems implicitly that the route of a 'unitary' patent pursuant to Art. 142 EPC will now be followed, according to the Commission proposal for enhanced cooperation. There is no reason why using the form of a regulation would rule out that approach. Preumably the idea of the EU joining the EPC is now off the table since Spain and Italy would not approve it.Steve Peersnoreply@blogger.comtag:blogger.com,1999:blog-1949935810569534550.post-14868674398770926972011-03-08T16:47:15.915+00:002011-03-08T16:47:15.915+00:00Jason Burwell's "First Thought" has ...Jason Burwell's "First Thought" has some appeal to it.<br /><br />The CJEU objects to the idea of allowing the European and EU Patent Court ("E&EUPC") to rule on the interpretation of community patent regulation. The appeal chamber of the E&EUPC must be required to request preliminary rulings on the interpretation of the community patent regulation. There must also be a means to compel the E&EUPC to comply with EU law in the event it fails to do so.<br /><br />Although it might well be possible to amend the draft E&EUPC treaty to address these concerns, it would be unwise to do so. The whole point of the E&EUPC is that it acts as a specialist court to develop substantive patent law in a consistent and rational manner. The draft treaty was framed precisely to avoid allowing the non-specialist CJEU to issue preliminary rulings on substantive issues of patent law. The CJEU lacks the resources and technical expertise to do this effectively and quickly.<br /><br />The solution must be to drop the "Community" / "EU" element of the proposed unitary patent and unitary patent court. Rather than using an EU regulation as a basis for the unitary patent the member states could establish a (non-EU) unitary European patent under Arts 142-149a EPC. Provided the unitary patent court were obliged to seek preliminary references on areas of EU law and provided an adequate enforcement regime were set up, the concerns of the CJEU would be addressed without allowing the CJEU the possibility to opine on matters of substantive patent law.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1949935810569534550.post-3908669139222875142011-03-08T12:32:25.977+00:002011-03-08T12:32:25.977+00:00While the patent court ('PC') itself, as p...While the patent court ('PC') itself, as proposed, appears to be killed by the ECoJ opinion, I don't think this is the ECoJ saying anything like 'we want to be in charge of this'. I think the ECoJ has burnt its fingers with TM's and, in effect, doesn't want to see the details of patent cases AT ALL... so, my hope is that there may be other routes open to try...<br /><br />Here follows two thoughts, does anyone have any others? :<br /><br /><br />FIRST THOUGHT<br />Noting §59. of the opinion, which states: "It should be made clear...concerns not the powers of the PC in the field of the European patent, but its powers relating to the future Community patent"<br /><br />and noting that what the ECoJ seems to want to reserve is that requests for ECoJ preliminary rulings must still go via national courts (§80 of ECoJ opinion)<br /><br /><br />Wouldn't there be scope for doing something EPLA-like & based squarely on European (i.e. not 'Community') patents, but with a right of appeal, for EU-nationals only(?) to their national courts on EU-treaty-interpretation-related issues?<br /><br /><br /><br /><br /><br />SECOND THOUGHT<br />In the alternative, the profession or the EPO (maybe collaborating with patent judges around Europe - e.g. those from EPO judges symposia) might look to form an extra-judicial resource/institution/venture for providing professional mediation services for multi-jurisdictional cases - to offer litigants a cheaper/quicker (trusted) way forward towards commercial resolution - noting the well-proven & -researched track record of mediation 'working' in 75%+ of disputes that use it.<br /><br /><br /><br />Jason Burwell<br />European Patent AttorneyJason Burwellnoreply@blogger.comtag:blogger.com,1999:blog-1949935810569534550.post-82123934073682385492011-03-08T11:42:45.936+00:002011-03-08T11:42:45.936+00:00No wonder industry does not want the European Cour...No wonder industry does not want the European Court of Justice to have the last word. Look what the ECJ has done to trademark law in Europe. Look what a mess the Supreme Court of the USA is doing to patent law in the USA.<br /><br />Conversely, look how refreshing is the patent jurisprudence of the UK Supreme Court.<br /><br />But then, its line is to tell the lower courts to follow settled EPO jurisprudence.<br /><br />That jurisprudence is settled because the 24 Technical Boards of Appeal at the EPO in Munich vie with each other to lay down the best path for legal development.<br /><br />And is it not exactly that competitive process which we now enjoy, in the efforts of the national patents courts of Germany, The Netherlands and the UK, to lay down the best path of post-issue patent law in Europe?<br /><br />I'm only asking, Mr Mooney.MaxDreinoreply@blogger.com