Patent owners, lawyers, judges and officials failed to break the impasse over the future of patent litigation in Europe, following a two-day symposium in Munich last week.
The conference was organized by the German Federal Patent Court and the country's Ministry of Justice and was generally regarded as a final attempt by the German government, which held the rotating presidency of the EU until June 30, to push forward the seemingly stalled debate over patent jurisdiction in Europe before its term expired.
In April, following an increasingly polarized debate among member states, the European Commission tried to find common ground between those governments that back the European Patent Litigation Agreement (EPLA) and those, led by France, that want to see a European Community-based court for European patents.
But a number of speakers at the symposium argued that it would be better to maintain the present system than replace it with an unsatisfactory compromise solution.
The German Minister of Justice, Brigitte Zypries, said that Germany would not accept a compromise for its own sake. And while she pledged to work towards finding a "viable solution", she warned that if the EU could not reach agreement over patent jurisdiction, then Germany would seek improvements to the system through informal judicial cooperation.
Although Benoît Battistelli, the head of the French IP Office, said that there was very little difference in substance between the EPLA and the French proposal for an EU system based on the European Court of Justice, he argued that only the latter was viable.
But Lord Justice Jacob, the English Court of Appeal judge who chaired a committee of judges that drew up draft procedural guidelines for the proposed EPLA court, told the audience that the EPLA was the only solution to the problem of Europe's fragmented system of patent litigation.
"Of course there would be problems and important matters of detail to be settled. But that is where attention should focus," he said.
He went on: "I pause to note that it is primarily those countries with little or no experience of patent litigation which favour the ECJ route. And even there, in my experience, their judges do not agree. You will know that at the Venice meetings the judges have been virtually overwhelming in their support for EPLA – a support reinforced at the last patent judges' symposium in Thessaloniki."
Despite the disagreement, Margot Fröhlinger of the European Commission struck a note of optimism. She said that at the beginning of the year, Commission staff had asked themselves whether Europe needed a patent jurisdiction – to which they answered yes – how it could be achieved and what would be the most essential elements of such a system.
The Commission had concluded that any new system should have some degree of decentralization in the first instance, a single court of second instance, technical expertise, independent judges, a clear set of procedural rules and be cost effective.
Fröhlinger said that there was some indication that the two camps within the Council of Ministers could come closer together.
"[They] need to approach one another," she said. "If not, nothing will happen. But the Commission believes that after the conclusion of the [draft constitutional treaty reforms] and elections in member states, there will be more interest in moving forward."
Portugal took over the EU presidency from Germany on July 1. It will be followed by Slovenia in the first half of 2008, and then France.
