News instruments for litigation UE

Transcription

New instruments
for litigation in Europe
The project of European and
Community Patent Court
Patrice VIDON
European Patent and Trademark Attorney
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KPAA / CNCPI Joint meeting - Paris - November 06, 2009
CONTENTS
I.- General context
II.- Latest drafts of the project
III.- Framework of the proposed Court
IV.- Key points under discussion
V.- Draft procedural rules
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General Context of Patent Litigation in
Europe
European patents = bundle of National patent rights
Currently: patent litigation at National level only
No integrated litigation system for European patents
Number of patent litigation cases in Europe:
about 1300 a year
DE: 800 (60 %)
FR: 350 (30 %)
UK: 75 (6 %)
• about 500-600 cases concern European patents
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Comparison with the USA
About 1000 new patent cases a year
But final decision in no more than 5% of cases
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Non-Trial:
96% of cases
Default
14 cases
Dismissal
33 cases
Pretrial Motion
107 cases
Consent Judgement
166 cases
Other Method
233 cases
Other Dismissal
247 cases
Initial activity as forecast
European Patents First Instance Court
Estimation:
• 150 actions in infringement a year
• 3 chambers (50 cases annually)
• 9 professional judges
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Proposal ad current drafts
Proposals in recent years:
2003: proposed Community Patent regulation (with a
community patent court linked with the EU Court of first
instance)
2004: proposal for the European Patent Litigation Protocol
(EPLA) under EPO initiative
The European Commission tries to propose a mixed
approach between EU and non EU system
Latest drafts of the project:
Draft Agreement on the European and Community Patent
Court and Draft Statute (March 23, 09)
Draft Rules of Procedure (October 16, 09)
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Project to create a European
and Community Patents Court (ECPC)
Not an E. Community institution (because European
patents are outside the Community Law)
international agreement between EU members and
some non-EU EPO members
competent for litigation (both infringement and validity)
for:
European patents
and
Community patents
(after adoption of a corresponding EU regulation)
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Next steps
•
During the Swedish Presidency (July-December 2009)
•
Opinion by the EUCJ expected (requested on June
25, 09)
Fourth draft of Rules of procedure dated October
16, 09
Maybe a first political decision by EU Council
(«highest priority» of the Swedish Presidency)
During the Spanish Presidency (January-June 2010)
Next discussions on draft of Rules of procedure in
expert meeting on February 2010
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Framework of the ECPC
Court of Appeal
Central Division of First Instance
Local
(or regional)
division
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Local
(or regional)
division
Local
(or regional)
division
Local
(or regional)
division
First instance
The Court of First Instance shall comprise:
–
–
–
–
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One Central division
Local divisions shall be set up in a Contracting
State upon its request
Additional local divisions set up in a
Contracting State upon its request when more
than one hundred patent cases per calendar
year have been initiated in that Contracting
State (no more than 3 divisions per Contracting
State)
Regional divisions set up for two or more
Contracting States, upon their request
First instance
Any panel of the Court of First Instance shall have a multinational
composition of 3 judges:
Central Division
2 legally qualified
judges
1 technical judge
Régional Division
Local division
2 full-time judges
from Contracting
States
2 full-time judges
from Contracting States
1 judge from pool of
judges, not from
Contracting States
and technically
qualified if appropriate
1 judge from pool
of judges,
technically qualified
if appropriate,
and permanent if more
than 50 proceedings
a year
The Chairman judge shall be legally qualified
Parties may agree to have their case heard by a single judge
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First instance
Pool of judges
all full-time legally qualified judges and technically qualified judges
from the Court
part-time technically qualified judges of the Court
At least one technically qualified judge per field of technology
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Court of appeal
•
Any panel of the Court of Appeal shall sit in a
multinational composition of five judges:
3 legally qualified judges
2 technically qualified judges
•
The Chairman judge shall be legally qualified
•
Appeal based on both points of law and matters of fact
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Jurisdiction
Exclusive jurisdiction of the ECPC in respect of actions of/for:
a)
actual of threatened infringements and supplementary protection
certificates and related defences (including counterclaims concerning licences)
a1) declarations of non-infringement
b) provisional and protective measures and injunctions
c) revocation of patents (and counterclaims)
d) damages or compensation derived from the provisional protection conferred by
published patent application
e) relating to the use of the invention prior to the granting of the patent
f) the grant or revocation of compulsory licences
National Courts of Contracting States shall have jurisdiction in actions related to
Community and European patents which do not come within the exclusive
jurisdiction of the ECPC
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Limited role of the EU Court of Justice
•
Considering the non-Community status of the
Patent Court, no further appeal before the EUCJ
•
However, EUCJ would be competent for
providing prejudicial interpretation of
Community law in a case (upon request by the
Court of First Instance or the Court of Appeal)
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Patent Mediation and Arbitration
Establishment of a patent mediation and arbitration Centre
with proper Rules
In the interim procedure (before the hearings), parties
requested by the judge Rapporteur to explore a
settlement of the case through mediation or arbitration
The Centre shall provide facilities for patent disputes, but
cannot declare full or partial validity/invalidity of
patent
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Key points still under discussion
•
•
Reluctant Member States
Geog. location of Central Division and Court of Appeal
•
Language of proceedings
– official language(s) of the local/regional division, or
– language of the patent
•
Representation
– Barristers
– European patent attorneys (direct representation or
assisting barristers ? With litigation qualification ?)
Rules of procedure (special connexion with the 2004
Enforcement Directive)
Transitional period (7 years ?)
•
•
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What Procedural Rules ?
(Requests by CNIPA)
3 important Goals
written Proceedings
Case Management
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Important Goals for the procedural rules
Predictability
Uniform application of material and procedural law,
clear and transparent criteria for the determination of
vague legal terms (e.g. inventive step)
Cost
Cost of the proceedings should not substantially exceed
the cost of a national patent litigation in the “more
affordable” jurisdictions
Speed
First instance decision typically should take not more
than one year
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Thank You
Patrice VIDON
European Patent and Trademark Attorney
Thanks also to :
• W. Holzer, Austrian and European Patent Attorney
• C. Keussen, German and European Patent Attorney
• B. Warusfel, French attorney-at-law
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News instruments for litigation UE

Transcription

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