Unified Patent Court

For reasons that will be obvious, this is a continuously evolving entry in this Glossary.

The proposed single EU court system to deal with cases involving the European Union Patent. If established, this court would eliminate the need for separate litigation of infringement of European patents in each state in which the patent court is applicable. This court is intended to come into operation in 2014, but like the infamous Godot, its arrival may yet be indefinitely delayed.

In March 2013, Spain (which has decided not to participate in the Community Patent system) launched two legal challenges at the Court of Justice of the EU to the proposed European Union Patent, which if successful, could stop the system coming into effect.

The Unified Patent Court, under the February 2013 agreement will consist of a Court of First Instance, a Court of Appeal (in Luxembourg) and a common Registry. The Court of First Instance will consist of a central division with its seat in Paris and sections in London and Munich, as well as local and regional divisions. At the time of writing, the Rules of Procedure of the court are being drafted and re-drafted in a manner that brings to mind the quip of Sir Alec Issigonis, the creator of the original Mini: “A camel looks like a horse that was planned by a committee.”

Some potentially difficult scenarios can be foreseen based on the Agreement under which the Unified Patent Court was set up. These scenarios include infringement and validity proceedings occurring in courts in separate countries, in different languages. For example, validity could be heard in Paris, using the language in which the EU patent was granted (which could be English, French or German), while infringement proceedings could take place somewhere else e.g., in Sweden in Swedish. Particularly given the potential for separate proceedings in different languages, one of which might be a relatively unfamiliar European language, there are concerns that the two different courts might not construe the patent in the same way, leading to possibly contradictory and hence illogical determinations relating to infringement and validity. See Split System.

It is also apparently currently intended that the court have the power to issue an EU-wide injunction based on a finding of patent infringement, before patent validity has been considered.  Since such an injunction would be subject to a bond against damages to be lodged by the plaintiff, enforcing the injunction would present very large financial risks for the plaintiff.

A further problem is that each court section (i.e., the national branches) is intended to be self-financing from the fees paid by litigants; if the fees generated were to be insufficient to support the court it would need to reduce staff or close.  This gives rise to a concern that such courts would have a strong economic incentive to be either pro-plaintiff or pro-defendant; patent holders are more likely to favour courts where the patent holders regularly wins – while declaratory judgment proceedings would tend to courts where patent holders lose.  The result may be rampant forum shopping.

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