Unified patent court system moves step closer after EU ministers back jurisdictional rule changes

Out-Law News | 08 May 2014 | 3:54 pm | 2 min. read

The planned new unified patent court (UPC) framework has moved a step closer to reality after EU ministers backed changes to rules governing the jurisdiction of courts and the recognition of judgments.

The Economic and Financial Affairs Council within the EU's Council of Ministers adopted new rules which amend the existing Brussels Regulation at a meeting in the Belgian capital on Tuesday. The European Parliament previously backed the reforms in a vote in April.

"It was ... necessary to amend [the Brussels Regulation], in particular to insert provisions which determine how the unified patent court can exercise its international jurisdiction," the Council said in a statement.

The UPC system will see local, regional and central divisional courts hear disputes about the validity and infringement of unitary patents. Unitary patents are protections that businesses will be able to obtain that span across many of the EU member states by filing just a single patent application at the European Patent Office (EPO).

A complex range of legislation, agreements and rules needed to make the new unitary patent and accompanying UPC regimes operational has either already been created or are in the process of being finalised.

The main aim of the new unitary patent system, as stated by the European Commission, is to cut the cost innovators face in filing for patent protection across multiple member states in the EU. Under the current process, EU-wide protection is only available to those who validate a patent registered with the EPO in each individual member state. The patent must be translated into the language of each state in order to be valid.

However, policy think tank the European Economic and Social Committee (EESC) earlier this year warned that businesses may be put off from defending their patent rights under the new UPC court framework being developed due to uncertainties over the cost of litigation. In particular the EESC said that there is a lack of clarity over what "the total amount of court fees payable" businesses would face are under the system.

At the time, patent law expert Adrian Murray of Pinsent Masons, the law firm behind Out-Law.com, said: "Among the issues yet to be decided upon include the cost of renewing unified patents. The circumstances in which preliminary injunctions will be awarded by the regional divisional courts is also still unresolved. Until these and other major facets of the new regime are clarified, there will continue to be consternation and uncertainty among businesses, as demonstrated by a range of major companies such as Google, Microsoft, Apple and Samsung in a recent open letter.”

The new unified patent court system is not expected to be operational until 2016. BIS), admitted in March that "technical changes" made to previous proposals on the exceptions following comments made during a previous public consultation on the reforms would be likely to delay those changes. The five SIs were then laid before parliament for scrutiny towards the end of March with a view to them coming into force on 1 June.

"It did, it is fair to say, take longer for the process to look at the five bundles [of copyright reforms in the SIs] in the latter stages," Viscount Younger said, according to a transcript of the evidence he gave to LSLC. "That led to us not being able to meet the April deadline. We then decided to go for 1 June, and that is purely on the basis that we had had such a long consultation and that certain stakeholders were really pushing us to get on with it, if I may put it that way. We thought we should do that and go for 1 June rather than delay further, until October, which would be the next window."