The deal was thrashed out at today’s meeting of the EU Council, made up of heads of governments of member states.
There had been speculation earlier in the day that no deal would be reached after Chancellor Merkel, Prime Minister Cameron and President Hollande clashed over the location of the central division.
But a document detailing the conclusions of the meeting, issued by the Council, said that Paris will host the Central Division of the Court of First Instance of the Unified Patent Court (UPC) as well as the office of the president of the Court of First Instance. The first president will come from France.
The statement went on to say that thematic clusters will be set up in two sections of the central division. One, in London, will deal with patent disputes related to chemistry (including pharmaceuticals) and human necessities while the other, in Munich, will deal with disputes over mechanical engineering cases.
The Council described the three-way split as being prompted by “the highly specialised nature of patent litigation and the need to maintain high quality standards”. Seasoned EU observers, however, may believe it had more to do with backroom deals between the leaders of three of the most powerful countries in the EU.
In an important detail of the deal, the Council document says it “suggests” deleting controversial articles of the proposed Regulation which were set to give the Court of Justice of the EU the right to hear appeals relating to substantive patent law issues.
For many critics of the unitary patent package, the inclusion of these Articles 6-8 would add time and uncertainty to litigation brought under the new system. However, removing them raises questions about the constitutionality of any agreement to which the EU itself is a party.
It remains to be seen whether these articles will remain in the agreement and what provisions, if any, will replace them.
The Council also provided limited details about the procedures for bringing unitary patent cases before the courts.
It said member states had agreed that parties will have the choice of bringing an infringement action before the central division is the defendant is based outside the EU. If a revocation action is already pending before the central division the patent holder should have the chance to bring an infringement action to the central division.
Defendants will not be able to request a transfer of an infringement case from a local division to the central division if the defendant is based in the EU.
Managing IP will be carrying more details about the unitary patent package deal and reactions to it later today.
