European patent regulation and litigation: Council progress report

The EU Council is working on two major issues regarding patents at the moment:

• a Regulation of the Council on the Community patent
  
• an Agreement creating a Unified Patent Litigation System
  

The preparatory work for both of these issues is done by the Council Working Party on Intellectual Property, and now the Competitiveness Council will deal with these issues next week (28-29 May 2009).

For this purpose, the Czech Council Presidency has prepared a progress report (five readable pages) from which I could see that the major topic of the Unified Patent Litigation System will be the setting up of a European and Community Patents Court for which an updated draft agreement and draft statute have been published in March.

Article 14a of the agreement defines the legal scope of this Court that shall replace "the current fragmented patent litigation system" (progress report):

Article 14a Applicable law

(1) When hearing a case brought before it under this Agreement, the Court shall respect Community law and base its decisions on:

(a) this Agreement;
(b) directly applicable Community law, in particular Council Regulation (EC) No … on the Community patent, and national law of the Contracting States implementing Community law […];
(c) the European Patent Convention and national law which has been adopted by the Contracting States in accordance with the European Patent Convention; and
(d) any provision of international agreements applicable to patents and binding on all the Contracting Parties.

(2) To the extent that the Court shall base its decisions on national law of the Contracting States, the applicable law shall be determined:

(a) by directly applicable provisions of Community law, or
(b) in the absence of directly applicable provisions of Community law, by international instruments on private international law to which all Contracting Parties are parties; or
(c) in the absence of provisions referred to in (a) and (b), by national provisions on international private law as determined by the Court.

The Council Regulation on the Community Patent has seen a latest draft version in April, and it looks like work will continue for a while, since the progress report states that this revised version "should form the basis for further discussion and work on the outstanding issues in the coming months" (highlighted by me).

Finally, the Czech Presidency concludes the progress report with the following outlook:

"With respect to the unified patent litigation system, the Presidency, in line with the wishes of a large majority of Member States, believes that the Council should request an opinion of the [European Court of Justice] on the compatibility of the unified patent litigation system with the EC Treaty. Finally, the Presidency considers that the Working Party should continue work with a view to enabling the Council to reach an overall agreement on both files as soon as possible."