Open questions on the European Patent Litigation Agreement (EPLA)

EPLA and ECJ

In an answer on behalf of the Commission on a written question (E-4062/05) by Thomas Wise (IND/DEM) (07.11.2005), Commissionar Mr McCreevy wrote: "The Community would accede to the EPC which would have as a consequence that the latter becomes Community law. Thus, Community patents would be subject to the ultimate jurisdiction of the European Court of Justice (ECJ)." [1]

This answer seems to imply that if the European Patent Convention becomes Community law, the ECJ has the ultimate jurisdiction in patent cases.

Do you agree that it would indeed be unacceptable to make a non-Community court the highest court over Community law?

Article 32 EPLA says: "Substantive patent law to be applied by the European Patent Court. For the purposes of litigation under this Agreement, European patents shall be subject to: (a) the provisions of this chapter, (b) those provisions of the European Patent Convention which apply to every European patent and which are consequently deemed to be provisions of this Agreement, and"

Do you agree that accession to the EPLA (partially) implies accession to the EPC, it will (partially) make the EPC Community law?

Do you agree that the EPC substantial patent law will be become Community law?

Do you agree that in the case of accession to the EPLA, patents will be subject to the ultimate jurisdiction of the European Court of Justice (ECJ)?

Do you agree that no EPLA court is needed if the ECJ can give preliminary findings in patent cases, and so promote the uniform application and interpretation of European patent law?

Do you agree that such a solution will be much less expensive?

[1] http://www.europarl.eu.int/omk/sipade3?L=FR&OBJID=108008&LEVEL=2&SAME_LEVEL=1&NAV=S&LSTDOC=Y

Acquis communautaire

Does EPLA fall under the acquis communautaire?

Do member states violate their obligations if they sign EPLA?

According to this media report (link) the Commission stated that after the adoption of the "Council regulation on jurisdiction and recognition and enforcement in civil and commercial matters" ((EC) No 44/2001, of 22 December 2000), Members States do not have the power to sign the EPLA. Possibly Community accession to the EPLA would solve this. Accession to the EPLA will have farreaching consequences. Will prior to an eventual accession to the EPLA the assent of the European Parliament be obtained?

http://www.europeanaffairs.org/archive/2003_winter/2003_winter_109.php4

Longer version:

Art 32 EPLA makes provisions of the EPC provisions of the EPLA. Accession to the EPLA implies partial accession to the EPC, which will partly become Community Law.
The EPC will partly be subject to the ultimate jurisdiction of the European Court of Justice (ECJ). We will have an EPLA European Patent Court, while the final jurisdiction will be at the ECJ.
If the EPC becomes Community law, subsequent changes of the EPC will also be Community law. The EPC can not only be changed by a diplomatic conference, the European Patent Organisation's Administrative Council can change the "Implementing Regulations", as well as Parts II to VIII and Part X of the European Patent Convention, thereby taking on the role of legislator. The constituting treaties of the European Community, with its precise rules on making Community laws, will be bypassed. The European Parliament will be bypassed. We will have Community law without democratic control. Accession to the EPC, and likewise accession to EPLA, undermines the European Community's constituting treaties.
The European Patent Office's Boards of Appeal's decisions will not be subject to the final jurisdiction of the ECJ, the Community will have no influence on the granting of patens.
According to the EPLA draft members of the internal, not independent European Patent Office's boards of appeal can be judges at the EPLA Patent Court at the same time, an unheard of mixture of executive and judiciary.
With an influx of EPO's board of appeal members into the EPLA Patent Court, EPO's internal case law will replace member states' Supreme Courts' case law, the software patents the European Patent Office granted (outside its competence) will be made enforceable. The reservoir of software patents will be unleashed. One stop litigation is profitable for the right holders. We will see US style litigation in the software sector in Europe.
It is highly questionable why the Community would accede to a court while it already has a Court, the highly prestigious ECJ, which can better guarantee impartiality.
EPLA does not have compulsory licenses.

Will prior to an eventual accession to the EPLA the assent of the European Parliament be obtained?

http://www.europeanaffairs.org/archive/2003_winter/2003_winter_109.php4

Accession to EPLA

Would an EPLA European Patent Court be "a specific institutional framework" under the second subparagraph of Article 300(3), so that an eventual accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained?

Would an EPLA European Patent Court have "important budgetary implications" under the second subparagraph of Article 300(3), so that an eventual accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained?

Do you agree that accession to the EPLA would entail amendment of an act adopted under the procedure referred to in Article 251, so that an eventual accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained?

Does the Commission promise that prior to accession to the EPLA the assent of the European Parliament will been obtained?

Will accession to the EPLA (partially) imply accession to the EPC, will it (partially) make the EPC Community law?

Working Party statement

The Working Party on Litigation stated in its Declaration: "It believes that the drafts' detailed and comprehensive provisions for a unitary European court system with a decentralised court of first instance, a centralised appellate court and a Facultative Advisory Council offer an optimum solution for users of the European patent system."

http://www.european-patent-office.org/epo/epla/pdf/declaration.pdf

The assumed goal of the patent system is to stimulate innovation. A judiciary is to provide a fair and balanced trial. An "optimum solution for users of the European patent system" would only take into account the rights holders, those who have acquired patents, not those who are accused of infringement. Do you agree that the chosen formulation seems to indicate a biased position on the part of the Working Party?

Impact assessment

The EPLA will make European scale patent litigation possible. The profits for litigating will be much higher. It will be profitable to litigate, for legitmate patent holders, but also for patent trolls. We will see more patent litigation. Is there a shortage of patent litigation that has to be solved? Is more litigation a political goal? Is there an impact assessment available on innovation, transaction costs, consumer prices, investor climate, the Lisbon agenda?

Compulsory licensing

EPLA does not mention compulsory licensing.

http://www.european-patent-office.org/epo/epla/pdf/agreement_draft.pdf

If we do not have national courts any more for patent cases but only a European Patent Court, there is no structure left, to ever grant a compulsory license on request by a private party.

National governments can issue compulsory licenses too. We will have uniform litigation, and non uniform compulsory licenses. In a way it is logical: the EPO / EPJ structure does not provide for an organisation, like the EU Commission, to exact compulsory licenses. How could we deal with European scale monopolies? Compared with the extensive handling of compulsory licensing in Commission's and Council's Community patent texts the lack of compulsory licensing in the EPLA draft is surprising.

There will not be European wide compulsory licenses possible, neither on request of private parties, nor on request of a European organisation. How would the Commission like to solve these problems?

Third way: harmonisation of national provisions

McCreevy speech November, 29 2005, Legal Affairs Committee:

I know that some of you have suggested a third way: the harmonisation of national patent rules. Of course, at this stage, all avenues should be explored. But before going up this avenue, we would need to be sure of the added value, so I intend also to seek views on this suggestion.

Are there further findings of the Commission regarding a third way?

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Questions to be answered by the Ministers

1. Under the current draft of the EPLA, EPO judges and staff will be able to qualify for the European Patent Judiciary? (Y/N/ABS)

2. What is the agenda for organising a diplomatic conference?

3. Do all EPC members need to agree to fix the date of the diplomatic conference?

4. The aim of the EPLA is to harmonise the diverging interpretation of the EPC in all states that would sign the agreement essentially the same goal as the software patent directive which was rejected last year by the European Parliament with near unanimity. Do you agree?

5. Can the European Parliament propose amendments to the EPLA? How would those amendments would be incorporated in the process? What is the EP's role in the event the EU were to contemplate becoming a party to the EPLA. The EC's questionnaire talks about a negotiating mandate for the EC and doesn't mention the EP.

6. Are the names of diplomats present at the meetings where the draft EPLA was published or available?

7. Are audio recordings and/or transcripts of such meetings available?

8. If yes, by whom and how were they made?

9. Is it within Member States competency to sign a treaty such as the EPLA?

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