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European patent enforcement pushed aside by EU Court of Justice

There have been a torrent of negative comments relating to the Court of Justice of the European Union’s decision not to allow a unified patent litigat

By PETER WHITE

Published: 10 March, 2011

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There have been a torrent of negative comments relating to the Court of Justice of the European Union’s decision not to allow a unified patent litigation system for Europe.

The decision is just a few days old and was supposed to be part and parcel of the London Agreement, under which 12 of the 27 EU countries were going to adopt a single patent granting process, all heading for a tidy patent system across Europe.

If patents are now granted in that way, they will still have to be pursued legally through multiple courts if the Court of Justice declines a role as an appeal court for these legal decisions Europe wide. So we may end up with a way of creating a European “mini-patent,” but no way of policing it.

This works two ways. It makes it more difficult to file a patent and protect it for European companies, but it also makes it tough for any US or other overseas companies to police their own patent infringement suits across Europe.

The Court of Justice of the European Union rejected the unified litigation proposal, deeming it incompatible with the provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union, the two principle treaties upon which the Union is based.

The proposal included a single European court structure to handle patent litigation initially for signature by members of the London Agreement with a view to this broadening to other European countries.

Local lawyers complain that the Court has poured cold water over proposals which have wide support by industry, judges and patent professionals and most commentators view it as a big step in the wrong direction.

The fact that many US patents have already been filed somewhere in Europe, often results in the better organized US companies, suing the real inventor of the breakthrough, and this would be greatly improved if the US had a single place to look up European Patents, and a single language to do it in.

If the Court of Justice won’t take patent appeal cases, then original cases as well as appeals will have to be carried out on a country by country basis. What most people wanted was not for the Court of Justice to take patent cases on, but for a new court to be set up with that kind of expertise, under its jurisdiction. That now will not happen.

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