European Patent Litigation Agreement - History

History

In 1999, a Working Party on Litigation was set up by member states of the European Patent Organisation to propose an optional agreement on the creation of such a central judicial system. At its fifth meeting on 19 and 20 November 2003, the Working Party came up with a draft agreement and a draft statute for the European Patent Court. The EPO level proposal parallized a similar EU level proposal for a Luxembourg European Patent Court by the European Commission and Council in conjunction with the community patent.

In 2006, the European Commission launched a public consultation on future patent policy in Europe, where the EPLA featured prominently next to the community patent, harmonisation and mutual recognition of national patents, and general issues. Both proponents and critics of the EPLA spoke out at the ensuing hearing on July 12, 2006.

On July 12, 2006, Charlie McCreevy, European Commissioner for Internal Market and Services, said "the European Patent Litigation Agreement is seen as a promising route towards more unitary jurisdiction" while closing the abovementioned public hearing on future patent policy in Europe.

In October 2006 the European Parliament adopted a resolution on Future action in the field of patents. As regard to the EPLA it considered "that the proposed text needs significant improvements, which address concerns about democratic control, judicial independence and litigation costs, and a satisfactory proposal for the Rules of Procedure of the EPLA Court;" and asked its Legal Service to provide an interim legal opinion on a potential overlap with the acquis communautaire.

In November 2006, an informal panel of judges from different European countries met in San Servolo, Italy, and adopted rules of procedures for the EPLA court. They signed a Resolution, the so-called "Second Venice Resolution".

In February 2007, an interim legal opinion of the Legal Service of the European Parliament was non-officially published and provided a negative opinion on the EPLA. The opinion concludes that the EPLA, specifically compliance by the Member States of the European Union with Article 98 EPLA, would prima facie constitute a breach of Article 292 of the EC Treaty. As a result, the European Community's competence would be exclusive for the matters governed by EPLA and Member States therefore would not entitled on their own to conclude that Agreement.

Earlier, on January 30, 2007, Sir Nicholas Pumfrey, a British judge supporting the EPLA, is reported to have told the audience at a seminar in London that it appeared that the EPLA had "finally died". "It is a minor but quite important disaster. We thought we had done it", he added.