The draft European Patent Litigation Agreement (EPLA), or formally the Draft Agreement on the establishment of a European patent litigation system, was a proposed

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

agreement aimed at creating an "optional protocol to the

European Patent Convention The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...

(EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court". It differed from the

Unified Patent Court The Unified Patent Court (UPC) is a common patent court open for participation of member states of the European Union, and created by the "Agreement on a Unified Patent Court" (UPC Agreement or UPCA), which is provisionally applicable since 19 ...

Agreement in that the EPLA negotiations were coordinated from the side of the European Patent Office, rather than from the European Council and Commission and therefore also offered the possibility for non-EU states to participate. The EPLA was a proposed alternative to a set of proposed Community patent regulations. The

European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...

regarded the negotiations on the EPLA as unlawful, although in 2006 it had gained a considerable ground among patent practitioners and national patent judges. The EPLA proposal was essentially dropped in 2007 after the Legal Service of

European Parliament The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...

issued an opinion that the EPLA would

prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...

constitute a breach of Article 292 of the

EC Treaty The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was signe ...

and thus the European Community and its members states could not participate. Many of its provisions were subsequently incorporated into the Agreement on a Unified Patent Court, which is currently undergoing ratification.

Background

Under Article 64(3) of the European Patent Convention, any infringement of a European patent is dealt with under national law (i.e. the law of one of the 38 member states to the

). Additionally, once the 9-month

opposition Opposition may refer to: Arts and media * ''Opposition'' (Altars EP), 2011 EP by Christian metalcore band Altars * The Opposition (band), a London post-punk band * ''The Opposition with Jordan Klepper'', a late-night television series on Comed ...

period under has expired, there is no centralised way of challenging the validity of a granted patent, leaving proceedings also there only to national law. Furthermore,

Brussels I Regulation The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union (EU) and the European Free Trade A ...

"on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters", valid for 26 European Patent Convention members (all European Union members except Denmark) does not according to a 2008 judicial opinion in the UK "fully consider s>edthe problems posed by intellectual property rights". Such disputes are typically based on parallel national rights rather than European-wide rights. As a consequence, parties wishing to litigate a patent often have to litigate as much about where and when disputes should be heard and decided as about the real underlying dispute.

History

In 1999, a Working Party on Litigation was set up by member states of the

European Patent Organisation The European Patent Organisation (sometimes abbreviated EPOrg in order to distinguish it from the European Patent Office, one of the two organs of the organisation) is a public international organisation created in 1977 by its contracting states t ...

to propose an optional agreement on the creation of such a central judicial system. At its fifth meeting on 19 and 20 November 2003, the Working Party came up with a draft agreement and a draft statute for the European Patent Court. The EPO level proposal parallelized a similar EU level proposal for a Luxembourg European Patent Court by the European Commission and Council in conjunction with the

community patent The European patent with unitary effect, also known as the unitary patent, is a European patent which will benefit from unitary effect in the participating member states of the European Union. Unitary effect may be requested by the proprietor ...

. In 2006, the

launched a public consultation on future patent policy in Europe, where the EPLA featured next to the community patent, harmonisation and mutual recognition of national patents, and general issues. Both proponents and critics of the EPLA spoke out at the ensuing hearing on 12 July 2006. On 12 July 2006,

Charlie McCreevy Charles McCreevy (born 30 September 1949) is a former Irish Fianna Fáil politician who served as European Commissioner for Internal Market and Services from 2004 to 2010, Minister for Finance from 1997 to 2004, Minister for Tourism and Trade fr ...

, European Commissioner for Internal Market and Services, said "the European Patent Litigation Agreement is seen as a promising route towards more unitary jurisdiction" while closing the above-mentioned public hearing on future patent policy in Europe. In October 2006 the

adopted a resolution on Future action in the field of patents. As regard to the EPLA it considered "that the proposed text needs significant improvements, which address concerns about democratic control, judicial independence and litigation costs, and a satisfactory proposal for the Rules of Procedure of the EPLA Court;" and asked its Legal Service to provide an interim legal opinion on a potential overlap with the

acquis communautaire The Community acquis or ''acquis communautaire'' (; ), sometimes called the EU acquis and often shortened to acquis, is the accumulated legislation, legal acts and court decisions that constitute the body of European Union law that came into b ...

. In November 2006, an informal panel of judges from different European countries met in

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, and adopted rules of procedures for the EPLA court. They signed a Resolution, the so-called "Second Venice Resolution". In February 2007, an interim legal opinion of the Legal Service of the European Parliament was non-officially published and provided a negative opinion on the EPLA. The opinion concludes that the EPLA, specifically compliance by the Member States of the European Union with Article 98 EPLA, would ''

'' constitute a breach of Article 292 of the

("Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein") and took into account that member states of the EU had not competence where the EU already had legislated and that the European Union already had legislated in the field of Intellectual Property. As a result, the

European Community The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisbo ...

's competence would be exclusive for the matters governed by EPLA and Member States therefore would not be entitled on their own to conclude that Agreement.IPEG
''Negative Opinion on powers of EU member states to agree individually on EPLA''
February 10, 2007, posting
document
dated February 1, 2007 (SJ-0844/06 D(2006)65117 "''Interim Legal Opinion''"), which does not appear on the European Parliament web site and which apparently was not meant to be published (the status of the document is unclear). Earlier, on 30 January 2007, Sir Nicholas Pumfrey, a British judge supporting the EPLA, is reported to have told the audience at a seminar in

London London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a majo ...

that it appeared that the EPLA had "finally died". "It is a minor but quite important disaster. We thought we had done it", he added. Thus, it became apparent in 2006-2007 that the countries which are members of the

European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...

did not have the competence to institute such a system, as long as it fell completely outside the European Union's legal framework. Later, in 2011, the Court of Justice of the EU eventually issued its

Opinion 1/09 An opinion is a judgment, viewpoint, or statement that is not conclusive, rather than facts, which are true statements. Definition A given opinion may deal with subjective matters in which there is no conclusive finding, or it may deal with f ...

that the envisaged court system was not compatible with EU law.

Content

The 2003 draft agreement provided the creation of a "European Patent Judiciary" (EPJ), comprising: * a "European Patent Court" competent to decide on infringement relating to patents of EPO member states and including a "European Patent Court of Appeal"; and * an "Administrative Committee". The EPJ would have made current national patent courts obsolete. However, the EPJ could have set up regional chambers.

Name

The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

Swiss Federal Institute of Intellectual Property The Swiss Federal Institute of Intellectual Property ( French: ''Institut fédéral de la propriété intellectuelle'', IPI; German: ''Eidgenössisches Institut für Geistiges Eigentum'', IGE; Italian: ''Istituto federale della proprietà intelle ...

''European Patent Litigation Agreement (EPLA)''
November 18, 2002. Retrieved on July 11, 2006 (archived version)

References

{{reflist, 2

External links

* European Patent Office web site (including additional links) *
EPLA summary
(archived version from the EPO web site) *
Mandate of the working party on litigation
(1999) (as published in the EPO Official Journal) *
Declaration of the Working Party on Litigation
(2003) (archived version from the EPO web site)

(archived version from the UKIPO web site) o
here
(archived version from the Swiss Patent Office web site) *
Official draft agreement
(2004) (archived version from the EPO web site) o
here
(archived version from the Swiss Patent Office web site) *
Official draft statute of the European Patent Court
(2004)(archived version from the EPO web site) o
here
(archived version from the Swiss Patent Office web site) *

European Patent Lawyers Association The European Patent Lawyers Association (EPLAW, formerly EPLA) is a professional association of patent lawyers, with a registered office in Brussels, Belgium. Its claimed object is "the promotion of efficient and fair handling of patent litigation ...

(EPLAW) web site *
First Venice Resolution
(November 2005) *
Second Venice Resolution
(November 2006)

archived version from the CEIPI web site European patent law