Brussels, 31 March 2004
OPINION of the European Economic and Social Committee on the Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance
Full text of Opinion in MS Word file on ESC website
The Committee's comments
2.1 The Committee notes that the proposal is in line with the EC Treaty and with the Protocol on the Court of Justice. The Committee supports the proposal in principle, subject to the following comments.
2.1.1 The CPC will handle disputes between private persons, unlike the disputes usually handled by the Court, and will do so in an area requiring specialised legal and technical knowledge. Given that the CPC is attached to the CFI and consists of two chambers of three first-degree judges and a president, and that a specialised appeal panel of three judges, incorporated within the CFI, is created, the general rules on the operation of courts are upheld. The Committee also supports the appointment of patent experts to assist the Court, rather than commissioners or advocates-general; the Committee believes that this will strengthen the authority and value of judgements.
2.1.2 The creation of a CPC attached to the CFI and of a specialised appeal panel within the CFI of the Court of Justice to handle cases relating to Community patents is necessary and appropriate, given that it relates to a single Community industrial property certificate: the future Community patent. The advantage of chambers dedicated exclusively to hearing disputes relating to the Community patent both at first instance and at second instance will be that parties to proceedings will be able to settle their disputes more quickly and efficiently by distinguishing this litigation from more general litigation handled by the CFI. The CFI will operate as an appeal body, and in certain restricted cases the Court of Justice will be able to act as a supreme body able to review previous decisions.
2.1.3 This will offer owners of technological patents and supplementary industrial property certificates all the appropriate procedural guarantees. The procedure will avoid referrals back from the CFI to the CPC, and settlements between parties will be possible before the Court, which will allow matters to be settled more quickly. Matters other than validity and infringement will remain within the jurisdiction of national courts, which is in line with the principle of subsidiarity.
2.1.4 The Committee considers that the ability given to private individuals to mount an indirect challenge to certain Community acts in relation to their private dispute (a technique known in French as exception d'illégalité, whereby a defence is made on the basis that the law of which the defendant is in breach is itself illegal) concerning the validity of a patent, without giving the CPC the power to strike down the Community acts in question, is justified on the basis of respect for the rights of defendants. However, the Committee considers that it would be appropriate that consequences be drawn from this, for example by the Court of Justice, to which the Commission could make a mandatory referral in cases where the CPC has accepted an exception d'illégalité defence.
2.1.5 For the transitional period, it is necessary to highlight the risk that the limited number of national courts appointed by each country might produce diverging decisions and case law, particularly as regards the interpretation of Articles 52-57 of the European Patent Convention. It would be appropriate to make provisions for the Court of Justice to be able, where necessary, to intervene subsequently as a revision body, in the limited circumstances that would allow such a procedure.
2.1.6 The Committee would like the proposed CPC, for its part, to give a measured interpretation, in line with the general principles of judicial interpretation, of the conditions of patentability in cases concerning the validity of a certificate, notably with regard to the exclusions clearly stated in Articles 52 et seq. of the EPC. It is concerned about future developments - parallel or divergent - of Community law and of the EPC, in particular with respect to the independence of Community law in relation to any changes that may be made to the EPC's provisions on patentability in the future, and would like the Commission quickly to propose arrangements for examining and issuing Community patents that would guarantee the supremacy of Community industrial property law with respect to possible amendments at the CPC of the conditions of issue and validity of the European patent by the EPO.
2.1.7 The Committee supports the provisions that allow disputes to be resolved quickly, such as the possibility of settlement before the court.
2.1.8 It considers the proposals presented by the Commission relating to the jurisdiction and the specific organisation of the Court for cases relating to Community patents to be well thought through, well-constructed, balanced, and likely to enable disputes to be resolved efficiently.
2.1.9 In the light of this, the Committee finds it all the more regrettable that the Council was unable, on 11 March last year, to make progress on the Regulation on the Community patent; the Committee would once again emphasise the importance of the creation of the Community patent as soon as possible, in order to support the innovation and competitiveness of European businesses, and finds delays for linguistic or other reasons, that are not fundamental in nature but could lead to excessive costs that would negate the advantage of a Community patent, to be unacceptable. All the Member States are parties to the EPC, which has only three official languages of application; there is no reason to adopt more binding and more expensive provisions for a Community patent.
2.1.10 The Committee very much hopes, for the sake of innovation and the creation of skilled jobs in Europe, that the Council will quickly decide in favour of a low cost patent, without excessive procedural costs or requirements that would remove its attraction and effectiveness.