Issue 169 | March 10, 2004
European Community Patent Update

On December 23, 2003, the European Union inched closer to implementing the Community Patent system when the Commission of the European Communities issued proposals for conferring jurisdiction in patent matters to a new "Community Patent Court" within the existing Court of Justice.

As reported in Issue 64 of these updates, the EU Competitiveness Council reached an agreement for the creation of a Community Patent on March 3, 2003. After a transitional period ending before 2010, during which national courts will retain jurisdiction, the Community patent will be governed by uniform provisions of Community law and be enforceable before a Community jurisdiction whose decisions enjoy Community wide effect. The establishment of Community patent jurisdiction is thus a key element of the Community patent system.

The European commission is proposing two Council decisions for establishing this jurisdiction. If accepted by the Member States, the first proposal will confer exclusive jurisdiction to the Court of Justice over disputes involving patent infringement, validity, prior use rights, damages, interim and evidence-protection measures, and penalty payment for non-compliance. The second proposal will establish the new Community Patent Court, within the Court of Justice, to exercise jurisdiction in disputes of first instance which relate to the Community patent. Once established, the CPC will conduct proceedings in the official language of the Member State where the defendant is domiciled, in the one chosen by the defendant where the State has two or more official languages, or any other official language upon agreement of the parties and consent of the CPC. The CPC may also hold hearings in Member States other than that in which it is located.

According to CORDIS-RTD News, EU Internal Market Commissioner, Frits Bolkestein, expects the Council to approve the proposals swiftly. However, he also emphasized that an agreement on jurisdiction is of no use without the final adoption of the Community Patent Regulation itself. On that front, the Council will be considering a compromise proposal by the Irish Presidency dealing with intentionally misleading claim translations during its next meeting on March 11. The latest proposal also calls for a report on the implementation of the regulation, within five years of the first Community Patent grant, addressing the 9-12 month post-grant deadline for filing claim translations into all the official languages of the Community.

The Proposals for a "Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent - COM(2003)827 final (23 December 2003)" and a "Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance - COM(2003)828 final (23 December 2003)" are available at http://europa.eu.int/comm/internal_market/en/indprop/patent/. The Proposal for "Preparation of the Competitiveness Council on 11 March 2004 - Proposal for a Council Regulation on the Community patent" is available at http://register.consilium.eu.int/pdf/en/04/st06/st06581.en04.pdf.

This issue of the "APLF Updates" was brought to you by Bill Heinze (bill.heinze@tkhr.com), at Thomas, Kayden, Horstemeyer & Risley LLP in Atlanta, Georgia USA.

The information contained in this email is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.

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