By Erin Geiger Smith
(Reuters) - European Union countries have agreed to create a
unified system to allow patent holders to enforce their rights
in participating EU nations, rather than having to do so in each
The agreement to establish the new patent court system was
signed by 24 of the current 27 EU countries in Brussels on Feb.
19. Spain, Bulgaria and Poland have not signed.
The new EU patent courts have a parallel in the U.S. court
system, where patent cases are tried in federal rather than
state courts, Laurence Cohen, a partner at Latham & Watkins who
is based in London, told Reuters.
The new courts will be empowered to issue judgments relating
to the infringement and validity of patents that are binding
across all signatory EU member states, according to a paper by
Cohen and associate Donald McCombie.
The courts are targeted to be up and running in early 2014,
though the paper cautioned that is an "ambitious timeline"
considering judges must still be chosen and facilities selected.
While each participating country is entitled to a local
court, so-called "Central courts" will also have jurisdiction
over anything the local courts can hear, the paper noted.
Certain courts are expected to hear patent cases on
particular subject matters, Cohen said. For instance, a court
based in London will hear pharmaceutical, chemical and
agricultural cases, among others, while Munich judges will hear
automotive cases and a court in Paris will hear the remainder,
he said. An appeals court will be located in Luxembourg.
The divisions, Cohen said, have certain similarities to the
United States, where if you sue in an inappropriate geographic
venue, you're likely to be transferred to the court best suited
to hear the case.
Unlike in the United States, however, cases will be heard by
a three-judge panel, even at the initial level. Part of the
purpose of a panel is to "even out national differences," Cohen
said. Only one judge on the panel can be from the country where
the court sits.
The judges are expected to be selected from current members
of the judiciary and practitioners with expertise in patent law,
While the new system is generally thought to be a positive
step for patent holders, Cohen noted the possibility of an
unintended consequence, one that the U.S. patent system has long
dealt with: litigation brought by non-practicing entities, or
so-called "patent trolls."
In the past, potential damages were limited to the single
country in which a suit was filed, but now plaintiffs will be
able to recover nearly EU-wide damages, Cohen said, a change
that could mean a greater incentive to pursue lawsuits.
The courts will not have jurisdiction over patents
registered only in a particular country but instead will oversee
so-called "European Patents" that are granted by the European
Patent Office, as well as a new "unitary patent" classification
that will go into effect when the courts are working, the paper
During a seven-year transitional period, European Patent
holders can opt out of the system, meaning their patent can be
revoked only on a country-by-country basis, the paper said.
In addition to selecting judges and finding courtrooms, the
EU committee overseeing the implementation must also finalize a
set of procedural rules for the courts.
The rules, Cohen said, are likely to be a combination of the
German, French, and British systems.
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