Establishment of the Community Patent Court

With a view to the creation of the Community patent, the establishment of a Community Patent Court, under the aegis of the European Court of Justice, is intended to complete the system of patent protection in the Union. The advantage of setting up the Community Patent Court will be that litigation can be centralised, thus making it possible to effectively resolve disputes relating to the infringement and the validity of Community patents. The judgments it delivers will be effective throughout the European Union, which will help avoid the confusion which can arise when judgements in several different national courts are required.

PROPOSALS

Proposal for a Council decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent; and

Proposal for a Council decision establishing the Community Patent Court and concerning appeals before the Court of First Instance.

SUMMARY

Proposal on the jurisdiction of the Court of Justice

The first proposal put forward by the Commission aims to confer exclusive jurisdiction on the Court of Justice in disputes relating to Community patents.

In accordance with this proposal, the Court shall have jurisdiction over:

• disputes relating to the infringement and the validity of the Community patent;
• the use of an invention after the publication of the Community patent application or the right based on prior use of the invention;
• interim and evidence-protection measures in connection with the subject matters conferred;
• damages or compensation in the circumstances set out above;
• the ordering of a penalty payment in case of non-compliance with a decision or order.

Given that the Community Patent Court will only be established after a transitional period (at the latest by 2010), the proposal contains a transitional provision under which the national courts shall retain jurisdiction during this period. Disputes of which a national court has already been seized during the transitional period will not therefore be affected by the conferral of jurisdiction on the Court of Justice.

Proposal establishing the Community Patent Court

The second proposal establishes the Community Patent Court, under the aegis of the Court of Justice. The jurisdiction of the Community Patent Court is determined by way of reference to the Council Decision, as set out in the proposal above, which confers jurisdiction on the Court of Justice in disputes relating to the Community patent. The Court will thus be competent, at first instance, in the areas specified in this Decision (see above).

It is proposed that the Court consist of seven judges, who shall be appointed for a period of six years. The Judges shall be chosen from candidates presented by the Member States. They shall be appointed by the Council of Ministers on the basis of their legal expertise in patent law, following consultation of an advisory committee. Once appointed, the judges will elect a president from among their number for a term of three years with the possibility of re-election.

The Court shall sit in chambers of three Judges. In certain cases, it may sit in an enlarged configuration, or be constituted by a single Judge.

The Court may order interim measures even before the commencement of proceedings on the merits of the case.

The language of proceedings is, as a general rule, the official language of the Member State where the defendant is domiciled.

An appeal against a decision of the Community Patent Court may be brought before the Court of First Instance within two weeks of its notification. It is proposed that a specialised chamber be set up within the Court of First Instance to hear appeals against decisions of the Community Patent Court. The appeal may be based on points of law (such as a breach of procedure) or matters of fact (e.g. a re-evaluation of the facts or evidence).

It should be noted that the establishment of this Community Court signifies a major change, as the Court of Justice will henceforth have jurisdiction to rule on disputes involving private parties, whereas up until now it only encountered this type of dispute in the context of questions referred for a preliminary ruling.

Last updated: 06.12.2007