EESC Opinion: Disputes relating to the Community patent (link)

April 13, 2004

Brussels, 31 March 2004

OPINION of the European Economic and Social Committee on the Proposal for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent COM(2003) 8 final - 2003/0326 (CNS)
Full text of Opinion in MS Word file on ESC website

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General comments

The Committee notes that the proposal is in line with the EC Treaty and with the Protocol on the Statute of the Court of Justice. The Committee supports the proposal in principle, subject to the following comments.

The Committee subscribes to the point of view that a single court with exclusive jurisdiction applying uniform rules and jurisprudence is necessary for the fair application of Community patent law to disputes arising within the Community. Such a solution gives parties to court proceedings the assurances of legal certainty and stability they are entitled to expect. The right to be heard in one's own language is also respected at hearings.

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 Community Patent Court 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.

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 to 57 of the European Patent Convention. It might be appropriate to make provisions for the Court of Justice to be able to intervene subsequently as a revision body, in the limited circumstances that would allow such a procedure, in order, where necessary, to harmonise jurisprudence created by the national courts responsible for hearing disputes relating to the Community patent, as it would be unfair if different solutions were reached in similar cases. This could, in particular, relate to the conditions of validity of a certificate issued by the EPO, whose Opposition Division and Board of Appeal are known for their sometimes questionable jurisprudence on conditions of patentability, which is not always adhered to by the national courts.

The supplementary protection certificate (medicines and plant protection products) does not yet exist for the Community patent and will be the subject of a later proposal by the Commission. The Committee considers it risky to include in the Court's jurisdiction disputes involving a certificate that has been proposed but whose nature and existence remain uncertain. A different, broader definition of the Court's jurisdiction (for example, -Community patents and other Community industrial property certificates-) could be considered in order to allow for future developments. The extension of protection or its future application to various fields of patentable inventions will doubtless raise contradictory issues, and one should be cautious about prejudging right now solutions and the nature of certificates which might one day be the subject of decisions by the Community legislator.

The Committee supports the Court being given the power to adopt interim measures (orders to act or abstain from an act, evidence protection, cease and desist orders) and sanctions, including penalty payments, without which the resolution of disputes would lack effectiveness. For practical reasons, the implementation of the CPC's final or interim enforcement decisions will need to be left to the competent national authorities, who have powers of coercion according to the respective laws. For cases not covered by the conferral of jurisdiction on the Court, national courts remain competent; such cases could include contracts relating to Community patents, or disputes relating to the ownership of such patent. The Committee also supports these solutions, but has a number of specific comments to make about them.

Finally, the Committee considers the conditions of entry into force of this decision to be logical and necessary, as it requires alterations to national rules on jurisdiction and judicial organisation, about which Member States will have to inform the Commission in advance, as well as the effective and simultaneous creation of the CPC, which will be created by the proposed Council decision commented upon in a separate opinion.

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European Economic and Social Committee

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