Main differences between
the European Patent Litigation Agreement (EPLA)
and the
jurisdictional system of the Community Patent Regulation (CPR)

Laurent NUSS
European Patent Attorney

1) The drawbacks of the present situation

One consequence of Articles 2 and 64 of the European Patent Convention (EPC) is that up to now jurisdiction for proceedings regarding revocation and infringement of a European patent has taken place on a national level, i.e. in each Contracting State. Bearing in mind that the EPC currently includes 28 Contracting States and will very soon include more than 30 with the imminent joining of Iceland, Malta and Norway, one can easily imagine the source of problems, with approaches and interpretations varying from one country to another. And this, despite provisions made in order to harmonize the situation, namely the Protocol on the Interpretation of Article 69 EPC or the TRIPS Agreement. This can lead to particularly striking and shocking divergences and contradictions when identical cases are dealt with in different countries, the most famous examples being the Epilady case (infringement in 5 countries, whereas non infringement in 4) or the Pipe clamp click case (infringement according to 4 Courts, and non infringement according to 4 other Courts, all this because one feature in the claim was interpreted differently by the Courts, although all of them were familiar with patent cases – almost a disaster...). This current situation also explains why we are confronted today to complex mechanisms such as forum shopping, cross-border litigation a.s.o. ...

We therefore understand why a different European patent system is necessary. Different major reforming projects have been worked out, namely the European Patent Litigation Agreement (EPLA) by the European Patent Office (EPO) and the Community Patent by the EU. Although both systems have many common features and have been built to be complementary, they nevertheless present several major differencies, even in their approach and organization.

2) The main differences between the two considered systems

a) Approach
The legal basis for the Community Patent Regulation (CPR) itself is Article 308 of the European Community Treaty, which requires unanimity between the EU Member States about an agreement to be reached on the CPR in its entirety. This is the reason why, after about 30 years of hard work, the Community Patent has still not come into force so far. Moreover, the Community Patent would have to be incorporated into the EPC since it would be the EPO itself that would grant the Community Patent. An updating of the EPC would thus be compulsory. This would of course not be the case as regards the EPLA. Furthermore, the EPLA could be joined by every EPC Contracting State on a voluntary basis, without requiring unanimity. Indeed, the EPLA might enter into force for some States only, thus avoiding that the non-agreeing States could block its entry into force. Besides, the so-called Facultative Advisory Council would give the opportunity to States not yet ready to join the EPLA, to join that part only, thus enabling them to be nevertheless part of the system.

b) Organization and Jurisdiction

The CPR, according to the common political approach of March 3rd, 2003, is a wholly centralized system, whereas the EPLA is rather a decentralized one.

The jurisdictional system of the Community Patent will be based on the principles of a unitary Court for the Community Patent, located in Luxemburg, in order to secure among others uniformity of the jurisprudence and high quality of working. In first instance the competence in the matter of Community Patent would belong to the Community Patent Court (CPC) and in appeal to the Court of First Instance (CFI) via a special Patent Appeal Chamber (PAC) – see Article 225a of the European Community Treaty. The European Court of Justice (ECJ) would be competent in the last instance – see Article 229a of the European Community Treaty. The whole jurisdictional system under the CPR would thus be centralized within the CPC, the only exception being that the Court might be able to hold hearings in EU Member States. A limited number of national Courts would have jurisdiction meanwhile until the establishment of the centralized CPC, at the latest by 2010. But, as it is highly improbable that a sole Community Patent would be granted before that date, this means that national Courts would actually have nearly no competence at all. Thus, the CPC would have exclusive jurisdiction for everything. The EPLA, on the contrary, according to the last Declaration by the Working Party on Litigation (WPL) on November 20, 2003, provides for the establishment of a European Patent Court comprising not only a Central First Instance Court and an Appeal Court both located in Luxemburg, but also regional divisions deciding at the first instance level and located in some of the EPLA States where required. Furthermore, the first instance level would also comprise a number of first instance Courts on a national level. Indeed, national Courts would also be competent to order provisional and protective measures provided for by national law and would also have the power to order provisional seizure of goods, when necessary.

c) Judges, languages and representation

According to the CPR, only legally qualified judges would be appointed, assisted by technical experts whose role would be close to the one of a technical judge, with the difference however, that they would not be allowed to take part to the votes when taking a decision. Judges would be appointed by unanimous decision and would sit in sections of three. They would normally work in the language of the Member State where the defendant would be domiciled, i.e. in the 21 languages of the EU Member States. Otherwise, the applicant would then be allowed to choose the language of the case. Finally, the right of audience would be given to a lawyer, assisted by a professional representative, like an epi member, who would also have his own right of audience.

Unlike the CPR, under the EPLA the judges sitting at the European Patent Court would have to be both legally and technically qualified. Their number sitting on the panel would vary, as the EPLA only fixed a minimum number. They would in most of the cases be able to work in their own language, since the European Patent Court could allow any language, provided that the parties and the panel agreed. At last, representation would be possible via any person fulfilling the qualifications according to the procedural rules, such as for example a so-called European patent counsel, assisted by a professional representative, i.e. an epi member.

d) Effects of decisions and procedural remedies

Concerning the revocation or the limitation of a Community Patent, the effect would be erga omnes in all the States of the Community. Under the EPLA however, it has not yet been decided whether the effect would be erga omnes in all EPLA States or only in the Contracting States for which revocation had been requested and pronounced.

As far as remedies are concerned, there are no significant differences between the two systems. Only the petition for review (which is a classical revision) shows an additional requirement under the CPR, namely that one of the two grounds on which it may be filed be of a decisive nature and be unknown to the party claiming the revision when the judgement was given.
The remaining differences relating to costs, enforcement, fees or sanctions are of much less importance.

3) Future prospects

As it comes out from this short comparison between the two systems, the jurisdictional system of the CPR may seem more attractive, as, thanks to its centralized approach, it looks more unitary and thus more harmonized.

But, as we all know, the Community Patent is, after about 30 years of debate, still being blocked for political reasons. Therefore, there won't exist any Community Patent in the next future. This is why the EPLA certainly looks like a more realistic short-term system since it could enter into force very easily and quickly without requesting either unanimity or a revision of the EPC. And this could be achieved totally independently of the "London Protocol", by maintaining for the time being the requirement of a translation of the European Patent in each Contracting State or at least of a part of it.