The Preparatory Committee of the Unified Patent Court has set up a website featuring a 'Roadmap' explaining the steps to be taken to create the high quality patent court required for the unitary patent. The committee is aiming for the Patent Court to be operational in 2015. That is an ambitious goal. It is obviously vital for its acceptance that the Patent Court issues high quality and consistent judgements from the start. This requires sufficient, well-qualified judges. The start date also depends on the ratification in 13 EU countries including Germany, France and the UK.
The fees for unitary patents are not yet known. The main fees in which everyone is interested are the renewal fees. These largely determine the financial appeal of the system. For many applicants the unitary patent will not be attractive, if it costs more than 3 to 4 national patents. Negotiations about the fees will take some time and it is possible that a decision will only be taken in mid-2014. There is also a debate about whether patent holders wishing to use their provisional right not to have disputes about their European bundle patent handled by the new Unified Patent Court will have to pay a fee for this.
Consultations are taking place until 1 October 2013 during which the public can submit written comments on the procedural rules of the Patent Court. A hearing will then take place when views can be presented verbally. Only then will the procedural rules be finalised.
One controversial issue is the language in which hearings will take place. It looks as if it will be possible to conduct hearings in English in many local divisions of the Patent Court, in addition to the language of the country in which the local division is based. The Netherlands will certainly opt for this. However, all judges in such a division will therefore have to master these languages.
Another issue still to be addressed is the so-called 'bifurcation'. This means that infringement and invalidity are handled in separate procedures. For example, the local division can assess the infringement, but refer the invalidity claim to the central division. This is similar to the standard procedure in Germany. However, there are disadvantages associated with this 'bifurcation', such as the higher costs and inefficiency arising when two courts are required to deal with the same patent and may do so at a different pace. There is also the risk that the patent claims in the invalidity case are explained differently (for example in a more limited way) than in the infringement case. That could lead to incorrect decisions. It is therefore expected that this 'bifurcation' will be applied in a restricted sense, but this will mainly depend on the position of Germany.
Nor has it been decided how detailed the judgements of the Unified Patent Court must be. Is it sufficient, as is customary in mainland Europe, to merely discuss the parties' arguments in as much detail as required to reach a judgement? Or should the British approach be chosen, in the course of which every argument of the parties is addressed, because they may theoretically be relevant in an appeal?
These and other aspects of the Patent Court will probably become clearer around New Year. NLO will keep you informed about the developments.
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