New Developments Concerning EU Unified Patent Court

On September 2, 2011, the Polish EU Presidency submitted Document 13751/11 to the Friends of the Presidency Group titled Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text and originally marked as “LIMITE”, i.e. confidential. On September 23, 2011, another related Document 13751/11 COR 2 removed the “LIMITE” restriction from its parent document. However, Document 13751/11 COR 1 still appears not to be accessible at the time of writing this blog posting.

The history of the proceedings according to the narrative of the above-identified Document is that, following the discussions with Member States, the Polish Presidency has prepared a first set of amendments to the Draft Agreement on a Unified Patent Court and draft Statute  covering up to Article 14d. The aim of this note is to explain the suggested changes and the envisaged way ahead. On June 14, 2011, the Hungarian Presidency had presented to the Mertens Group a modified Draft Agreement which confers exclusive jurisdiction upon a court common to the Member States in the field of European Patent and European Patent with unitary effect. This modified Draft Agreement was based on the previous draft agreement on the European and Community Patent Court and necessary amendments have been made to ensure compliance with the EU Treaties in response to the opinion 1/09 of the Court of Justice of the European Union (CJEU). It also included adaptations to the text in light of the December 2009 Council conclusions.

The introductory passage of the recently released Document explains the amendments done with regard to earlier versions as follows:

The main changes, which were proposed to ensure compliance with the EU Treaties as set out in the opinion of the CJEU were the limitation of participation in the draft agreement to EU Member States (thus excluding the participation of third states as well as the EU) and the strengthening of the obligation of the Unified Patent Court to comply with EU law and request preliminary rulings, if necessary, including through the introduction of sanctions. The removal from the draft of the EU and non-EU states as possible contracting parties fundamentally changed the nature of the Draft Agreement, the aim of which is to establish not just an international court, but a court common to the Member States. This will represent a new patent jurisdiction which will be an inherent part of the judicial systems of those Member States which are party to the agreement.

According to the Document, the Polish Presidency organised two Friends of the Presidency Group meetings on 11 and 18 of July – both of them focused on the Draft Agreement. The Presidency has presented its preliminary assessment of the questions on the compatibility of the chosen option with the Treaties and the opinion from the CJEU and attempted to group and categorise the questions raised by
the delegations so far. As reported in the Document, the concerns raised by the Member States have been summed up and divided into three types of issues, as follows:

a) The compatibility of the chosen option with the Treaties in the light of the opinion of the CJEU. The questions posed by Member States concerned two aspects: first, whether the Unified Patent Court is a court common to the Member States and whether the possibility to request preliminary rulings is ensured. Second aspect concerned questions on the liability of Member States for damages incurred due to the infringement of Union law by the Unified Patent Court and the possibility for the Commission to launch infringement proceedings against Member States
b) The compatibility of the draft agreement with the existing acquis, in particular the Brussels I Regulation,
c) Comments on the agreement as such, i.e. the individual articles and their drafting, e.g. the entry into force clause, the financing of the Unified Patent Court, questions on
technical judges etc.

The present Draft attempts to address these concerns:

The Unified Patent Court will be a court common to the Contracting Member States and thus part of their judicial systems, with exclusive jurisdiction in respect of European patents with unitary effect and European patents designating one or more Contracting Member States, as detailed in Article 15 of the Draft Agreement with national courts remaining competent for all other actions (Article 15 (2) of the Draft Agreement). The Draft Agreement also states in Article 6 that legally qualified judges who are nationals of the Contracting Member States will comprise the judicial panels at both local and regional divisions of the Court.

It is recalled in the Preamble to the Draft Agreement that the Contracting Member States are operating under the principle of sincere cooperation as set out in Article 4(3) of the TEU and that in fulfilling that obligation they undertake to ensure through the creation of a common court the full application and respect for Union law in their respective territories and the judicial protection of an individual’s right under that law. Therefore, just as any national court, the Unified Patent Court must in particular cooperate with the CJEU by relying on the jurisprudence of the CJEU and by requesting preliminary rulings in accordance with Article 267 of the TFEU.

Accordingly, Article 14a titled “Primacy and respect of Union law” provides that Unified Patent Court shall apply the body of Union law in its entirety and respect its primacy. Article 14b of the Draft Agreement refers to Article 267 TFEU as the basis for preliminary rulings requests by the Unified Patent Court in order to ensure the proper application and uniform interpretation of Union law

And further on:

It seems crucial to the Presidency to point out that, contrary to the Draft Agreement submitted to the CJEU the legal basis for requesting preliminary rulings is not based directly on the provisions of the agreement, but on Article 267 TFEU. The changes made to the Draft Agreement are aimed at ensuring that the Unified Patent Court will be considered as competent to ask preliminary questions on the basis of Article 267 TFUE. The removal of non-EU States from the Draft Agreement and placement of the Unified Patent Court as a court common only to the Member States brings the Unified Patent Court in line with the CJEU reasoning in the C-337/95 Dior case “…there is no good reason why such a court common to a number of member states, should not be able to submit questions to this Court in the same way as courts or tribunals of those member states.”.

Other substantial aspects directly reflecting patent law as well as procedural matters appear not to be amended. Hence, some comments recently provided by Jeremy Philips on IPKat in view of a previous version of the Document may also apply with regard to the revised one.