His comments, made at a launch seminar for the Institute of Brand and Innovation Law (IBIL) at University College London on Tuesday, came ahead of further discussions on the details of the proposed EU patent court later this month.

A 60-article draft Agreement on the EU Patent Judiciary was published on May 14, but many aspects still need to be worked on, including whether infringement and validity should be heard separately (so-called bifurcation).

In Germany, infringement and validity are always addressed in separate hearings. Austria adopts a similar approach.

But in most other EU countries, they are heard together. Proponents say this makes for a simpler, more efficient system, but Germany maintains that bifurcation is preferable.

Interviewed by Managing IP after the seminar, Jacob acknowledged: “There is some difference about bifurcation.”

Speaking at Tuesday’s seminar, Robin Stout of the UK IP Office, who has been representing the UK in the EU negotiations, said recent discussions on plans for both a patent litigation system and a Community patent right had led to progress.

But he identified 10 issues relating to the litigation system that remain to be tackled: bifurcation; the number of regional and national divisions; the nationality of judicial panels; technical expertise; languages; the role of the European Court of Justice; substantive patent law; funding; and transitional provisions.

Jacob is part of a panel of patent specialists advising the European Commission on the centralized patent court. The group is due to hold another meeting with the Commission on June 27.

Other members of the panel include judges Klaus Grabinski from Düsseldorf, Germany; Robert van Peursem from the Netherlands; Alice Pezard from France and Eurico José Marques dos Reis from Portugal.

Lawyers on the panel include Kevin Mooney from Simmons & Simmons in the UK, Jochen Pagenberg from Bardehle Pagenberg in Germany, Pierre Véron from Véron & Associates in France, Jocef Tálas from Hungary and Jorge Grau of Grau & Angulo in Spain.

Jacob told Managing IP that bifurcation is one of several issues that need to be resolved.

For example, the draft agreement envisages having a central division as well as an undefined number of local and regional divisions. Jacob said the decision about where to have the regional courts should take into account the size of cases as well as the number, since some jurisdictions have many small disputes, while others have fewer large ones.

He also emphasized the importance of the central division in ensuring uniformity: “The regional courts should have the power to send cases to the central division if there is a difficult question.”

The discussions should address provisional measures as well as full trials, he added: “In the UK, before the American Cyanamid case, there was more emphasis on whether the case was strong in deciding whether to grant an injunction. Going back to that might not be a bad thing.” Such an approach would be similar to the Dutch kort geding procedure, he added.

Jacob said he is optimistic that further progress can be made in the discussions as long as the aims remain realistic: “We’re obviously not going to be able to produce anything that’s perfect.”

“We’re moving towards something more rational. As to procedure, the judges still hold strong to the Second Venice Resolution,” explained Jacob. The Resolution arose from European judges’ annual meeting in Venice in 2006, where 26 judges agreed principles for the rules of procedure.

“[The court]’s got to be better than what we’ve got or it isn’t worth it,” he said at the seminar.

In his presentation, Stout said questions regarding the Community patent that still need to be resolved include fees, delivery, work-sharing and language.

The most recent proposals on language envisage the use of computerized translations, something that many practitioners – as well as member states such as Spain and Italy – remain sceptical about.

But Stout defended the plans: “The fact that some translations are available in any EU language has got to be beneficial.” He added that the automatic translations he had seen were “rather good”.

The EU working group on patents is due to meet again next week to discuss the Community patent proposals. The latest discussions were summarized in a paper prepared by the Slovenian presidency for the Competitiveness Council meeting at the end of May.

If enough progress is made, France (which takes over the presidency of the EU in July) may try to secure agreement among member states by the end of the year. But it would take many more years for any changes to come into effect.

The EU Lisbon Treaty is due to come into force on January 1 2009 (subject to a referendum in Ireland next week), after which it could be harder to agree any new patent legislation.

Tuesday’s seminar also included presentations by Geoffrey Hobbs QC on the ECJ decision on comparative advertising in O2 v Hutchison 3G, which is due out next week, and by Tilmann Leüder of the European Commission DG on the Internal Market and Services, who spoke on EU copyright harmonization.

The IBIL is headed by former judge Professor Sir Hugh Laddie and was set up last year.