Mr Antonio TAJANI, Vice President of the European Commission (left) - Mr Waldemar PAWLAK, Polish Deputy Prime Minister and Minister for Economy, President of the Energy Council - Commissioner Michel BARNIER

Yesterday, the first day of the 3133rd Council meeting in the Competitiveness configuration (Internal Market, Industry, Research and Space) was held in Brussels under the EU Presidency, chaired by Mr Waldemar PAWLAK, Deputy Prime Minister and Minister of Economy of Poland. Document 18115/11 conveys a press release saying :


Ministers in charge of intellectual property files held a policy debate on the creation of a unified patent litigation court, as a part of a package aimed at establishing a patent system with unitary effect that ensure uniform protection for inventions across Europe, together with the corresponding translation arrangements.

The debate took place on the basis of a compromise package drawn up by the Presidency. The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011.

The essential elements of the compromise include:

1. The seats of the Central Division of the Court of 1st Instance, the Court of Appeal and the Patent Arbitration Centre

Several proposals have been made by member states interested in hosting the seats.

2. The financial contribution of the member states hosting a local division, a regional division, the Central Division or the Court of Appeal

The host member state would provide for the necessary facilities, equipment and, for the initial period, the management of the administrative staff.

3. Other financial contributions of the member states

While the objective should be that the Unified Patent Court becomes self financing over time, financial contributions will be required in the setting up phase based of a balanced and transparent formula.

4. Language of proceedings

While the principal should be maintained that the language of proceedings of a local division can be changed only with the agreement of both parties, a party could address a request to the President of the Court in order to change the language of proceedings for reasons of convenience and fairness.

5. Actions to be brought to the central division

The possibility to enhance the role of the central division and give parties the choice to bring actions from infringements concerning a number of member states before the central division instead of bringing them before a local or regional division. Under the compromise the parties would have the choice to bring an infringement action before the central division if the defendant is domiciled outside the EU.

6. Number of ratifications required for the entry into force

There is general consensus that the Unified Patent Court should enter into force once a minimum number of member states have ratified the Agreement.

7. Transitional period

A transitional period will be fixed for “classical” European patents without unitary effect during which actions can still be brought before the national court.

8. Revision clause

A range of provisions would have to be reviewed by the administrative committee in order to improve the functioning, efficiency and cost effectiveness of the Unified Patent Court and the quality of its judgements.

The debate follows discussions engaged at the ministerial meeting of 29 September 2011 (see press release 14691/11, page 9), on the basis of the draft agreement for creating a common patent court that would ensure compliance with the EU treaties. Previously, on 30 May 2011, a large majority of member states endorsed the setting up of a unified patent court by means of an agreement to be concluded between the member states outside the EU institutional framework.

During the last weeks, EU preparatory bodies have carried out intensive work on the other parts that configure the package: two draft regulations implementing enhanced cooperation in the area of unitary patent protection (see press release 11831/11). Following negotiations with the European Parliament, a provisional agreement has been achieved between the Council and the Parliament, which includes additional provisions for the benefit of the small and medium-sized enterprises (SMEs) in the future use of unitary patent protection.

The European Parliament is expected to vote on the two draft regulations for the creation of unitary patent protection and the applicable translation arrangements early in 2012.

So, apparently we still dont’t know exactly what was decided especially with regard to the seat of core components of the UPC. However, recently I saw an interesting tweet on Twitter:

Well, does this mean that the seat of the Appeals Court has already been determined?

Valentina Pop reports on EUobserver:

A compromise “package” drafted by the Polish EU presidency got the support on most of the issues, except the seat of the main litigation court for the upcoming EU patent – with Britain and Germany refusing to cede it to France, as envisaged by the presidency, one EU diplomat told this website.

And, further:

Under the non-contentious parts of the deal, Luxembourg would get the appeals court, Slovenia and Portugal two mediation and arbitration centres and Hungary a training facility.

Hence, we shall continue to drink some tea or coffee and watch things unfolding.

By the way, officially unpublished Document 17578/11 dated December 1, 2011, and titled Proposal for a Regulation of the European Parliament and the of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection - Analysis of the final compromise text has been leaked and is available on

[UPDATE 2011-12-06 1230h] Just saw this on IPKat – how true this critics on the handling of insitutional proceedings! However, contrary to AmeriKat I have not yet made up my mind for final as to whether or not the outcome will at the end deserve the label cold, unappetizing dinner.

One casual observation from the AmeriKat: We have obviously not seen any of the debates on these proposals. Instead we can only go on what is said in these press conferences. To her, there is a flavor of this whole process that reminds her of cooking for a dinner party. Your expectant guests don’t know what manner of horror and chaos is going on in the kitchen, but everytime you come out to living room you calmly and over-enthusiastically assure them that an amazing dinner will be ready very soon. The Presidency and Commission lend themselves to that feeling during these press conferences – who knows what sort of chaos is occurring during these debates but the AmeriKat cannot help expect that despite their positive reassurances, the patent profession will be left picking over a cold, unappetizing dinner having lost its appetite 20 years ago.

(Photo (C) 2011 Council of the European Union)

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

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