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Unified Patent Court (UPC) ratification moving forward

21 February 2014 - No comments »

EPO President Benoît BattistelliIn recent weeks, the ratification of the Agreement on the Unified Patent Court has received a fresh impetus, with the completion by Malta (on 21 January) and France (on 13 February) of the relevant parliamentary procedures, following the example set by Austria in August of last year. Preparations for ratification are also well under way in Belgium and the UK, and the national referendum in Denmark will be taking place on 25 May. I would like to congratulate these national authorities on the swift progress they have made, and to encourage the other countries to step up the pace, so that the unitary patent can become available soon as a new option to users (implementation of the unitary patent requires prior ratification of the Agreement on the UPC by least 13 member states, including France, Germany and the UK).

On the technical side, I understand that the work of the Preparatory Committee for the UPC has been progressing well, with a strong emphasis on user consultation, which is crucial to confidence in the future system. Through bodies such as the European Patent Lawyers Association (EPLAW), experienced practitioners are closely involved in the preparatory discussions. Next month, the Training Centre for UPC judges will open in Budapest. This is a key element in the UPC project, and the EPO, with its long experience in training specialist patent judges, will be doing everything it can to support the new centralised jurisdiction in this respect. Another very positive element is the fact that more than 1,300 candidacies have been sent to the body in charge of selecting the future UPC judges. So there are all reasons to believe that those judges will be fully qualified and experienced. With the impending entry into force of the UPC, it also became necessary to amend the Brussels I Regulation dealing with jurisdiction and the recognition and enforcement of judgments. This process, too, is about to be concluded: the JURI Committee of the European Parliament has now adopted the revised text as agreed during the Trilogue held on 29 January and confirmed by the COREPER II on 5 February. Formal voting will take place in the Parliament at the end of this month and in the Council in early March.

In the US also, the debate on the patent litigation system has been gaining momentum. In his State of the Union speech on January 29, President Obama called on Congress “to pass a patent reform bill that allows our businesses to stay focused on innovation, not costly and needless litigation”. The aim here is to curb patent trolling. It will be interesting to see how the US goes about devising legislative measures to address the issue effectively without impacting on normal practice. Some commentators see the problem as stemming mainly from the combination in the US litigation system of parameters (non-specialist juries, punitive damages, wide-ranging preliminary injunctions and expensive discovery actions) that create an imbalance of interests between the parties in pre-litigation discussions. Yesterday, the US government started to present a set of executive measures.

A few months ago, some users, mainly US, expressed their concerns regarding the potential extension to Europe of this patent troll phenomena. The legal framework defined by the treaty on the UPC, integrating the European legacy, and the on-going implementing and procedural work done by the Preparatory Committee give all reasons to believe that it it will not be the case. This new litigation system will be well balanced and fit for the purpose.

Benoît Battistelli


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