On Friday, Margot Fröhlinger of the European Commission chaired a second meeting of the so-called patent experts, made up of five judges and five patent lawyers representing a total of seven different countries.
The participants discussed a number of elements of the latest draft of a working document produced by the Slovenian government (the holder of the rotating presidency of the European Union until the end of June), which sets out proposals for a European patent litigation system. The draft, document 7728/08, was published on March 19.
Among the subjects discussed were the composition of panels and a pool of judges to hear patent disputes, the scope of exclusive jurisdiction, the possibility for a licence holder to initiate infringement proceedings, the treatment of pending direct actions for revocation or declaration of non-infringement if infringement procedures are initiated before local/regional divisions, and representation of the parties.
One of the patent specialists invited by the Commission to be part of the group, Jochen Pagenberg of German IP firm Bardehle Pagenberg Dost Altenburg Geissler, told Managing IP that members of the group appeared to reach consensus in a number of areas, including the composition of panels of judges that would hear disputes in any European patent litigation system.
A majority agreed that the panel should consist of two local judges who would ultimately write the judgment, plus one judge from another country who would be able to speak the language of the local court to a very high level. In cases involving particularly technical issues, the judges could request an additional technical judge to join them. This person would be chosen from a central pool of patent judges.
On the question of who should be given rights of audience, the group agreed that patent attorneys who have obtained an additional legal qualification should be allowed to represent clients in disputes brought before the courts under any new patent litigation system.
Although the meeting only has the status of an informal consultation, it could be expected that the Commission, and member states, will take the views of the patent experts into account when negotiating the final terms of any patent litigation deal.
The European Commission has been trying to develop a proposal for a Europe-wide patent litigation system acceptable to all member states for almost three years.
Negotiations over a European Patent Litigation Agreement (EPLA) were subsequently blocked by a number of EU countries, led by France, who support an EU-led solution to patent litigation. Since then, negotiators have been trying to find common ground between supporters of the EPLA and those that want to see patent litigation managed within the EU’s existing legal framework.
Although many observers have doubted whether a compromise can be reached, Pagenberg said that progress was now being made: "I would never have thought that something so serious could have come out of the process by now," he said. "We’re still not there and the text needs to be revised but these meetings are helping to achieve consensus."
However, he said that agreement still needs to be reached in a number of key areas, including how long any transitional provisions would last for.
The next meeting of the so-called expert group is due to be held in two months’ time. In the meantime, the Commission is expected to discuss the points raised by the group at the next meeting of the working party on intellectual property, which is made up of representatives of each EU member state.
