After decades of protracted discussions and negotiations,
Europe's patent law and patent court system are about to
undergo their most radical shake-up since the foundation of the
European Patent Organisation.
In December 2012 the Council and Parliament of the European
Union adopted the two regulations which form the legal basis for
the newly established unitary patents and the language regime
thereof. At the same time, the legislative process continued at the
international level with the aim of finalising an agreement on a
unified European patent court system. Wh a t i s k n own a s the
"Agreement on a Unified Patent Court" (or
"AUPC") is intended to be signed on 18.02.2013 by the 25
participating Member States (all EU countries except Italy and
Spain) and then ratified by the parliaments; the latest version of
this agreement (Document 16351/12 of 11.01.2013) can be accessed
via the EPO webpage.
The regulations on the unitary patent and the AUPC will enter
into force only once at least 13 of the 25 contracting Member
States, which must include Germany, France and the United Kingdom,
have ratified the AUPC, yet on 01.01.2014 at the earliest.The
European patent with unitary effect ("unitary patent") is
applied for in the same manner as a European patent; however, if
the publication date of the granted patent falls after the AUPC
enters into force, the patent proprietor can request unitary effect
for all 25 countries from the EPO. The request must be submitted
within one month following publication of the decision of
Once a transition period of at least seven and at most 14 years
has elapsed, both "conventional" European patents and the
new unitary patents will be subject to the exclusive jurisdiction
of the newly established European Patent Court. This new court
shall consist of both local and regional divisions and a central
division. Provisionally, four local divisions are to be set up in
Germany, replicating the traditional places of patent court
jurisdiction (Düsseldorf, Mannheim, Hamburg and Munich). The
central division will have its main seat in Paris, with sections in
London (pharmaceuticals) and Munich (mechanical engineering).
Competence for infringement proceedings shall be determined in
accordance with Council Regulation no. 44/2001. In particular it
shall remain the case that patent proprietors may bring an action
against potential infringers at both the seat of said infringers
and the place of commi s s ion. The cent ral di v i s ion has
competence in isolated actions for revocation and for a declaratory
judgement to establish the non-existence of a right. In the event
of counter action for revocation, the local or regional division
before which the case was first brought may refer the lawsuit to
the division or continue the proceedings.
The Court of Appeal will have its seat in Luxembourg.
Important matters, in particular the cost of renewal fees and
the recourse to the court system, have not yet been settled.
Preu Bohlig & Partner is now offering advice to clients and
patent attorneys on all matters concerning the new court
Back in November 2012 Partner Dr Stephan Gruber delivered a
lecture to the Bavarian Association of Patent Attorneys on the
unitary patent. Andreas Haberl and Konstantin Schallmoser provide a
comprehensive and in-depth insight into the new system in the
current issue of GRUR Prax. (issue 1/2013), setting out in detail
the court system, procedural law, language regime, transitional
arrangements and outstanding issues.
In Spring 2013 Preu Bohlig & Partner will publish a special
edition of the client newsletter in German, English and French.
This will detail the new system and also highlight the measures
which patent proprietors and applicants should and must already be
taking. At the same time, Preu Bohlig & Partner's
Düsseldorf and Munich offices will provide information on the
new court system at the successful Preu Breakfast.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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