Patent agents likely to be able to act before EEUPC

01 February 2010

As reported in Managing IP, the Competition Council of the European Union has recently agreed on a set of conclusions on an enhanced patent system in Europe. The main features of the system include an EU patent to be granted under the provisions of the European Patent Convention, that is by the EPO, as well as a European and EU Patents Court (EEUPC).

The EEUPC will have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of EU patents and European patents granted by the EPO. It is hence envisaged that the national courts of the EU member states will have no jurisdiction in disputes relating to EU and EP patents (other than in a limited number of cases during a transitional period).

According to the draft agreement on the EEUPC, the Court should comprise a Court of First Instance and a Court of Appeal. The Court of First Instance should comprise a central division as well as local and regional divisions. Whereas the geographical location(s) of the central division and the Court of Appeal have not yet been determined, it is foreseen that regional divisions of the Court of First Instance will be set up across the EU territory.

A number of issues still remain to be decided and finally negotiated among the governments of the EU member states. One issue at stake is the representation requirement. Lawyers with a national authorisation will undoubtedly be allowed to practise before the EEUPC.

According to the most recent version of the draft agreement on the EEUPC, patent agents authorised to practise before the EPO, that is European patent attorneys, will also be authorised to represent clients before the EEUPC, provided that they have obtained an additional qualification and that they are authorised to represent parties before national courts. The latter requirement, however, is seen by many as discriminating in favour of UK patent agents and German patent attorneys and will most likely not prevail in the final legislation.

It is hence to be expected that European patent attorneys who have an additional qualification, such as some kind of litigation certificate, will be authorised to represent parties before the EEUPC in infringement and validity disputes. The requirements of such a qualification are still to be established.