|Notice the flag placement - surely|
a sign that the Unified Patent Court should be in
"The Commission recommends that the unified patent court have exclusive jurisdiction over infringement and validity for both the unitary European Union patent and for (bundle) European patents granted under the EPC. Participation in the proposed agreement would only be open to Member States of the European Union. EU Member States not taking part in the unitary patent would be free to participate in the court agreement but the court would only have jurisdiction over (bundle) European Patents in respect of those countries.The operation of European bundle patents in respect of non-EU EPC Contracting States would be unaffected. Disputes relating to (bundle) European patents in such States would still be heard by the relevant national court as is current practice. This system will still provide significant savings to UK businesses because they would not need to litigate their patents in as many different national courts as they do now.
You also asked how likely it is that the Commission's recommended approach will meet the concerns of the Court of Justice of the European Union (ECJ). In its opinion of 8 March the ECJ (the 'Court') objected to conferring jurisdiction on a court created by international agreement which would deprive Member States' courts of their task of implementing Union law or referring questions to the Court of Justice for a preliminary ruling. The Court distinguished this from the Benelux Court of Justice as "a court common to a number of Member States, situated, consequently, within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union. The Commission recommends addressing this point by limiting participation in the new patent court agreement to EU Member States.
As you note in your letter, the Commission goes on to state that as consequence it would seem possible for infringement proceedings then to be initiated against all Member States jointly were the unified patent court to violate Union law and for any financial liability arising to be applicable to all Member States jointly. By limiting participation in the proposed agreement to EU Member States we are satisfied that the Commission's recommended approach addresses the issues raised by ECJ Opinion 1/09. This approach received support from the vast majority of Member States when it was discussed at the Competitiveness Council on 30 May 2011, so I am confident it will be adopted.
The Presidency has produced a revised draft agreement for the Court system based on the Commission's recommendations. This draft has now been published and I will deposit the new draft agreement and submit an Explanatory Memorandum accordingly.
The Unified Patent Court AgreementUK industry has not yet had an opportunity to comment on the detail of the new draft agreement. The Government regularly consults UK stakeholders on developments with both the unitary patent and unified patent court negotiations and we will continue to engage positively with industry. [Merpel understands it to be the other way around"…..]"
|Unfortunately not the |
the EU was thinking of...
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Funding – Because the EU is no longer a party to the agreement Baroness Wilcox said that that means that there will not be an EU contribution to the costs for establishing the UPC. Indeed the lucky Member State who gets the central division has to pay for it from their own pocket (Article 5(1a)). Baroness Wilcox stated that the UK favors a system whereby the UPC is self-funded primary through court fees. The Committee reports from the Memorandum that Contracting Member States will be expected to subsidise the operating costs initially but the level of contributions may be expected to fall as the UPC begins to recoup costs through court fees.”
Jurisdiction – The Committee reported from the Memo that in the UK and most EU Member States related patent validity and infringement actions are generally tried together, but that the current proposals allow for these actions to be dealt with separately. She explained that UK industry generally oppose hearing these issues separately as it can increase costs and render irreconcilable decisions. Further, there is a 5 year transition period during which time litigants have the option of trying matters before the national courts instead of the UPC. Baroness Wilcox explained that some industry stakeholders have commented that the transitional period is not long enough because it can take 5 or more years for a patent application to be granted by the EPO from filing.
Costs – Baroness Wilcox outlined concerns that the costs of the UPC may be high for a variety of reasons, including costs for accessing the UPC, costs related to representation (who is allowed to represent parties in court) and whether legal aid is available. In particular it was noted that the costs of the UPC may be especially high given that there will no longer be contributions from the EU budget it setting up costs of the court. Tied into costs, was the concern over language – the Committee reports from the Memo that some Member States have concerns that their nationals may not be able to use their own language in the UPC, judgments may not be available in their language and complex language requirements will create cost and uncertainty.
Location - The AmeriKat's favorite issue of location was referred to but only in very neutral language: "Current proposals for the Court do not state the location of the central division of the Court of First Instance, the Court of Appeal and the Mediation Centre." ["It should read 'locations', says the AmeriKat gunning that perhaps at least the Central divison ends up in London.]
The Scrutiny Commitee wants your views!
"We note that negotiations on the draft agreement are at an early stage. So rather than asking further questions now, we would be grateful for an update on the negotiations when the details of how the UPC will operate in practice for EU and European patents become clearer, such update to cover whether the concerns raised by the Minister above have been allayed. We would also be grateful for a summary of the views of UK industry on the UPC. In the meantime, the draft agreement on the UPC, document (c), remains under scrutiny."