Originally published 30 March 2009

Keywords: patents, European Commission, Unified Patent Litigation System, Community patent, European Patent Litigation Agreement, EPLA, UPLS,

The European Commission has recommended to the European Council the negotiation and adoption of an agreement that would create a Unified Patent Litigation System ("UPLS"). If adopted, the UPLS would form part of a bundle of reforms to introduce a pan-European patent system in conjunction with a single Community patent (i.e. a single patent to cover the whole of the European Union, like the EU-wide rights  which have already been introduced for trade marks and designs). It would also create a court structure with jurisdiction concerning the infringement and validity of European patents and any future Community Patents.

Attempts to introduce a Community patent have stalled many times, over political issues such as which languages to use.

The Commission has recommended the UPLS because it believes the patent system which currently exists in Europe is fragmented, and that the lack of a unified patent litigation system makes access to the system complex, expensive and hinders the effective enforcement of patents.

Currently, innovators wanting to obtain patent protection in the various European Union Member States can do so through separate national patents or through a European patent granted by the European Patent Office ("EPO"). Under the current patent litigation system in Europe, patent owners may have to litigate in parallel Member States depending on where the patent is in force. This may involve considerable cost, complexity and legal uncertainty because court decisions issued in different Member States may contradict one another.

The Commission also pointed to a recent economic cost-benefit analysis of the UPLS which concluded there would be substantial benefits for litigants and Europe's economy in general by avoiding duplication of patent litigation cases.  The report forecast that by 2013, the private cost savings could amount to between €148 and 289 million a year, and it expected such cost savings to rise in the future.

Previously, the EU Member States and other countries had prepared a draft European Patent Litigation Agreement in conjunction with the EPO which would have partly addressed the shortcomings of the present system, but this did not attract enough political support.  For this reason the Commission proposed the creation of the UPLS.  Unlike the EPLA, the UPLS is designed to cover Community patents (as and when implemented) and European patents.

The UPLS would establish a unified court structure with the following features:

  • jurisdiction over European and future Community Patents for infringement and revocation actions
  • a single judiciary following uniform procedures and comprised of highly specialised and trained judges
  • decisions that will have effect throughout the territories where the patent is in force

If the UPLS is adopted, the Commission believes that it will contribute significantly to the promotion of innovation and the reduction of costs and burdens currently associated with patent litigation for businesses, and in particular SMEs. 

The next step is for the European Court of Justice ("ECJ") to opine on whether the proposed system complies with the EC Treaty.  If the European Council then gives the go-ahead, it will be open to the Commission to open negotiations for the adoption of an agreement creating the UPLS.  Previous experience suggests that obtaining political agreement will be far from easy, despite the disadvantages of the current system.

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