One Step Nearer a Unified European Patent Litigation System

Author:Ms Sarah Byrt
Profession:Mayer Brown

Originally published 30 March 2009Keywords: patents, European Commission, UnifiedPatent Litigation System, Community patent, European PatentLitigation Agreement, EPLA, UPLS,The European Commission has recommended to the European Councilthe negotiation and adoption of an agreement that would create aUnified Patent Litigation System ("UPLS"). If adopted,the UPLS would form part of a bundle of reforms to introduce apan-European patent system in conjunction with a single Communitypatent (i.e. a single patent to cover the whole of the EuropeanUnion, like the EU-wide rights  which have already beenintroduced for trade marks and designs). It would also create acourt structure with jurisdiction concerning the infringement andvalidity of European patents and any future Community Patents.Attempts to introduce a Community patent have stalled manytimes, over political issues such as which languages to use.The Commission has recommended the UPLS because it believes thepatent system which currently exists in Europe is fragmented, andthat the lack of a unified patent litigation system makes access tothe system complex, expensive and hinders the effective enforcementof patents.Currently, innovators wanting to obtain patent protection in thevarious European Union Member States can do so through separatenational patents or through a European patent granted by theEuropean Patent Office ("EPO"). Under the current patentlitigation system in Europe, patent owners may have to litigate inparallel Member States depending on where the patent is in force.This may involve considerable cost, complexity and legaluncertainty because court decisions issued in different MemberStates may contradict one another.The Commission also pointed to a recent economic cost-benefitanalysis of the UPLS which concluded there would be substantialbenefits for litigants and Europe's economy in general byavoiding duplication of patent litigation cases.  The reportforecast that by 2013, the private cost savings could amount tobetween €148 and 289 million a year, and it expected suchcost savings to rise in the future.Previously, the EU Member States and other countries hadprepared a draft European Patent Litigation Agreement inconjunction with the EPO which would have partly addressed theshortcomings of the present system, but this did not attract enoughpolitical support.  For this reason the Commission proposedthe creation of the UPLS.  Unlike the EPLA, the UPLS isdesigned to cover Community patents (as and...

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