On Monday night, the European Council reached final agreement on
the European Union's plan to unify Europe's patent system and patent courts. The centralized system isn't quite a done deal.
The European Parliament is scheduled to vote on unification next
month, and Spain and Italy are challenging the legality of the
implementation plan. But it's looking more and more likely that
in April 2014, the European Union will institute a centralized
patent approval system and a centralized patent court, with
judges trained to apply a uniform -- but yet-to-be-developed --
body of patent law.
The big question for patent litigators, of course, is
whether the unified European patent courts will favor Germany's
generally patent-friendly laws or the United Kingdom's more
skeptical view of the rights of patent holders. In recent years,
patent owners and their IP counsel have learned to take
advantage of German courts' low bar for injunctions to gain
leverage in global patent disputes. Will a unified European
patent system put an end to the Germany strategy?
According to patent lawyer Charles Larsen of Ropes & Gray,
who is also a UK solicitor, the answer to that question will lie
in what procedures the unified courts adopt over the next year
and a half. Larsen said that by instituting a unified patent
system, the European Union intended not only to show its ability
to streamline legal and political processes and increase the
EU's economic influence but also "to mitigate forum shopping as
a tactic." By centralizing standards, he said, the EU wants to
eliminate the uncertainty (and cost) of litigating patent
validity and injunctions in several different countries whose
courts might yield inconsistent results.
But it's not clear what the centralized law will be,
according to Larsen. And already, he said, patent holders are
expressing fear that if Germany's patent-friendly standards are
adopted across the European Union, the EU could become a haven
for patent trolls wielding the power of easy injunctions. Just
as the courts of the United States generally became friendlier
to patent holders after Congress created the Federal Circuit
Court of Appeals to apply patent laws uniformly, Larsen said,
there is concern that the EU's centralization will favor IP
On the other hand, he said, companies with weak patents will
have to be concerned about the impact of a single invalidity
ruling across the entire EU. "There's more at stake for patents
now," Larsen said. "Companies will have to make sure their
European patents are good and enforceable."
There will be a lot more to come on the centralized EU
patent system over the next year. If you're an IP lawyer, it's
time to start paying attention.
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