Helping to shape the future litigation system

08 November 2013

EPO President Benoît BattistelliOn 25 and 26 October the European Patent Academy‘s European Judges Forum was held at Venice International University on the island of San Servolo. This forum, launched in 2005 and organised in co-operation with the Intellectual Property Judges Association (IPJA) and the European Patent Lawyers Association (EPLAW), brings together a large number of judges and lawyers specialising in patent litigation from the various EPO member states. This year’s forum was attended by 32 judges from 15 different countries and 27 lawyers from 12 different countries. The Venice Forum focuses on a mix of substantive and procedural issues, including a mock trial followed by group work. Its unique, informal and interactive setting, the intensive off-the-record discussions, and the expertise and commitment of the participants, allow judges and lawyers from different jurisdictions to develop a better and common understanding of issues of patent law and litigation. In my opinion, this forum makes a big contribution to the quality, consistency and predictability of jurisprudence across Europe.

This year’s forum addressed substantive law issues such as second medical use claims and the related case law of EPO boards of appeal and of national courts, as well as the relationship between standards and patent law, and the role of competition law in litigation involving standards-essential patents. Not surprisingly, a significant part of this year’s discussions and work was devoted to issues surrounding the unitary patent and the Unified Patent Court. The discussions on the court’s draft rules of procedure and several hot topics such as the criteria to be applied by judges for granting injunctions, or their discretion over bifurcation of infringement and invalidity actions, were especially intensive and productive. The mock trial in particular, which included the bifurcation issue, demonstrated that judges and lawyers from across Europe are able to develop common views on such topics, despite their different national judicial traditions and concepts. It also showed that the fears of “forum-shopping” voiced by certain industry representatives during the public consultation on the court’s draft rules of procedure do not seem really justified.

It is likely that the unitary patent and the Unified Patent Court will continue to be discussed at the Venice Forum in the coming years. Given the experience of these seasoned practitioners, and their commitment to a soundly functioning future litigation system, I am very confident that they will provide users with a solid and balanced legal framework that will be entirely fit for purpose. As I have said before, the creation of a high-quality centralised court system is one of the missing links in Europe’s patent system, and fundamental to the success of the unitary patent, as it will help to build user confidence.

Meanwhile, at national level, the ratification process was finalised in Austria during the summer, and seems well advanced in the UK, France and Belgium.

For its part, the EPO, which has observer status on the preparatory committee working to set up the Unified Patent Court, is committed to doing all it can to support this work. The European Patent Academy, which has a wealth of experience in training patent judges through study visits, internships, conferences and seminars such as the Venice Forum, will redouble its efforts in this regard.

Benoît Battistelli

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Categories: Unitary patent

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