Considerations on COM(2003)828 - EC Patent Court and concerning appeals before the Court of First Instance - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2003)828 - EC Patent Court and concerning appeals before the Court of First Instance. |
|---|---|
| document | COM(2003)828  |
| date | December 23, 2003 |
(2) The system of patent protection has been characterised by patents granted either by a national patent office in a Member State or by the European Patent Office with effect in a Member State and by enforcement of those patents before the national courts of the Member State concerned.
(3) Innovative European industry relies on effective Community-wide legal protection for its inventions. The creation of a Community patent system comprising a unitary Community patent title and the possibility of enforcing such a right before a Community jurisdiction to be established at the latest by 2010 after a transitional period in which national courts retain competence will provide the missing elements completing the system of patent protection in the Union.
(4) Council Regulation (EC) No .../2003 i creates a Community patent title. Holders of such a title will enjoy Community wide protection of an invention according to the uniform standards of the regulation.
(5) By Decision 2003/.../EC i, the Council confers jurisdiction on the Court of Justice in certain disputes relating to the Community patent, recommending those provisions to the Member States for adoption in accordance with their respective constitutional requirements.
(6) The second paragraph of Article 220 of the Treaty provides that judicial panels may be attached to the Court of First Instance under the conditions laid down in Article 225a thereof, in order to exercise, in certain specific areas, the judicial competence laid down in the Treaty.
(7) The jurisdiction conferred on the Court of Justice under Article 229a of the Treaty in disputes relating to the Community patent should be exercised at first instance by a judicial panel established on the basis of Article 225a of the Treaty, to be called 'Community Patent Court'.
(8) Article 225 i of the Treaty provides that the Court of First Instance has jurisdiction to hear and determine actions and proceedings brought against decisions of the judicial panels set up under Article 225a of the EC Treaty. For this purpose a specialised patent appeal chamber should be created within the Court of First Instance to hear appeals against decisions of the Community Patent Court. Decisions made by the Court of First Instance on appeal against decisions of the Community Patent Court are according to Article 225 i of the Treaty, exceptionally, subject to review by the Court of Justice where there is a serious risk to the unity or consistency of Community law.
(9) In order to take account of the special nature of private-party Community patent litigation and to ensure a uniform procedure at both instances, amendments to the procedural rules contained in the Protocol on the Statute of the Court of Justice are necessary, both for the procedure at first instance before the Community Patent Court and on appeal before the Court of First Instance.
(10) A centralised and specialised Community court system, holding exclusive jurisdiction for Community patent disputes and composed of a first-instance Community Patent Court and an appeal chamber within the Court of First Instance, should ensure expertise and decisions of the highest quality. It should guarantee efficient patent proceedings for the whole Community, the establishment of a common body of case-law and the uniform application of Community patent law,
HAS DECIDED AS FOLLOWS:
Chapter I
Community Patent Court
Article 1
Establishment
A judicial panel, to be called 'Community Patent Court ', shall be attached to the Court of First Instance of the European Communities.
Its seat shall be at the Court of First Instance.
Article 2
Application of Treaty provisions
Save as hereinafter provided for in this Chapter, Articles 241, 243, 244 and 256 of the Treaty shall apply to the Community Patent Court.
Article 3
Statute provisions for judicial panels
The following Title VI is added to the Protocol on the Statute of the Court of Justice:
"Title VI
JUDICIAL PANELS
Article 65
The provisions relating to the jurisdiction, the composition, and the organisation of judicial panels established under Article 225a of the Treaty, and the procedure before them, shall be as laid down in the annexes to this Statute."
Article 4
Annex to the Protocol on the Statute of the Court of Justice
The following Annex [II] is added to the Protocol on the Statute of the Court of Justice:
"Annex [II]
Community Patent Court
Article 1
The Community Patent Court shall have, at first instance, exclusive jurisdiction in disputes relating to the application of Council Regulation (EC) No.../... [of ... on the Community patent] and Council Regulation (EC) No .../... [of ... on the Community supplementary protection certificate] to the extent that jurisdiction is conferred on the Court of Justice pursuant to Article 229a of the EC Treaty.
Article 2
The Community Patent Court shall consist of seven Judges, who shall be appointed for a period of six years. The membership shall be partially renewed every three years, replacing four and three members alternately. Retiring members shall be eligible for reappointment.
The Judges shall be chosen from candidates presented by the Member States having an established high level of legal expertise in patent law. They shall be appointed by the Council on the basis of their expertise after consultation of a committee to be set up in accordance with Article 3.
Article 3
An advisory committee to be set up for this purpose shall, prior to the appointment decision of the Council, give an opinion on the adequacy of the profile of candidates with a view to the function of a Judge at the Community Patent Court. It may attach to its opinion a list of candidates possessing the most appropriate high level of legal experience. Such a list shall comprise a number of candidates twice the number of Judges to be appointed by the Council.
The advisory committee shall be composed of seven members chosen from among former members of the Court of Justice, the Court of First Instance, the Community Patent Court or lawyers of recognised competence. The appointment of members of the advisory committee and its operating rules shall be decided by the Council, acting by a qualified majority, on a proposal from the President of the Court of Justice.
Article 4
The Judges shall elect the President of the Community Patent Court from among their number for a term of three years. He may be re-elected.
Article 5
Articles 2 to 7, Articles 13, 14 and 15, the first, second and fifth paragraphs of Article 17, and Article 18 of the Statute shall apply to the Community Patent Court and its members.
The oath referred to in Article 2 of the Statute shall be taken before the Court of Justice and the decisions referred to in Articles 3, 4 and 6 of the Statute shall be adopted by that Court after hearing the Court of First Instance and the Community Patent Court.
Article 6
The Community Patent Court shall appoint its Registrar and lay down the rules governing his service. The fourth paragraph of Article 3 of the Statute and Articles 10, 11 and 14 thereof shall apply to the Registrar of the Community Patent Court mutatis mutandis.
Article 7
Technical experts shall assist the Judges throughout the handling of the case as Assistant Rapporteurs. The fourth paragraph of Article 3 and Article 13 of the Statute shall apply.
Assistant Rapporteurs must have a high level of expertise in the relevant technical field. They shall be appointed for a period of six years on a proposal from the Court of Justice. Retiring Assistant Rapporteurs shall be eligible for reappointment.
Assistant Rapporteurs are required, under the conditions laid down in the Rules of Procedure, to participate in the preparation, the hearing and the deliberation of cases. They shall have the right to put questions to the parties. They shall not have a right to vote.
Article 8
The Community Patent Court shall sit in chambers of three Judges.
In certain cases governed by the Rules of Procedure, the Community Patent Court may sit in an enlarged configuration, or be constituted by a single Judge. They shall contain provisions concerning the quorum.
The President of the Community Patent Court shall preside over one of the chambers of three Judges. In addition, he shall preside where the Community Patent Court sits in an enlarged configuration. The President of the remaining chambers shall be elected by the Judges from among their number for a term of three years. They may be re-elected.
The composition of the chambers and the assignment of cases to them shall be governed by the Rules of Procedure.
Article 9
The President of the Court of Justice or, where appropriate, the President of the Court of First Instance shall, acting by common accord with the President of the Community Patent Court, determine the conditions under which officials and other servants attached to the Court of Justice shall render their services to the Community Patent Court to enable it to function. Certain officials or other servants shall be responsible to the Registrar of the Community Patent Court under the authority of the President of the Community Patent Court.
Article 10
The procedure before the Community Patent Court shall be governed by Title III of the Statute with the exception of the second paragraph of Article 21, Articles 22 and 23, the first and third paragraphs of Article 40, Article 42 and Article 43 thereof. It shall be subject to Articles 11 to 25 of this Annex.
Such further and more detailed provisions as may be necessary shall be laid down in its Rules of Procedure. The Rules of Procedure may derogate from Article 40 of the Statute in order to take account of the specific features of litigation in the field of Community patents.
Article 11
The lawyer referred to in Article 19 of the Statute may be assisted by a European Patent Attorney whose name appears on the list maintained by the European Patent Office for the purpose of legal representation before it and who is a national of a Member State or of another State which is a party to the Agreement on the European Economic Area.
The European Patent Attorney shall be allowed to speak at hearings under the conditions laid down in the Rules of Procedure.
The fifth and sixth paragraphs of Article 19 of the Statute shall apply mutatis mutandis.
Article 12
By way of derogation from the fourth, fifth and sixth paragraphs of Article 20 of the Statute the following rules shall apply:
The oral procedure shall consist of the presentation of the main features of the case by the Judge acting as Rapporteur, the hearing by the Community Patent Court of the parties, and the examination of evidence.
The Community Patent Court may, in accordance with the Rules of Procedure and after having heard the parties, dispense with the oral procedure.
The Rules of Procedure may provide that all or part of the procedure may be conducted in electronic form, and the conditions for so doing.
Article 13
By way of derogation from the first sentence of the first paragraph of Article 24 of the Statute the following rule shall apply:
Where a party has presented reasonably accessible evidence sufficient to support its claims, and has, in substantiating those claims, cited evidence which is to be found under the control of the opposing party, the Community Patent Court may order that such evidence be produced by the opposing party, subject to the protection of confidential information.
Article 14
The competence of the Community Patent Court to prescribe any necessary interim measures shall not be conditional upon main proceedings having already been instituted before it.
Where there is a demonstrable risk that evidence may be destroyed even before the commencement of proceedings on the merits of the case, the Community Patent Court may, in the event of an actual or imminent infringement of a Community patent, authorise in any place either the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the documents relating thereto.
Where interim or evidence-protection measures have been revoked the Community Patent Court shall order the applicant, at the request of the defendant, to provide the defendant adequate compensation for any injury caused by these measures.
Article 15
Article 39 of the Statute relating to special orders in a summary procedure shall also apply to evidence-protection measures. The Rules of Procedure shall determine who is competent to make the orders.
Article 16
Without prejudice to Article 41 of the Statute, a judgment by default may be given against the party that, after having been duly summoned, fails to appear at the oral hearing.
Article 17
By way of derogation from the first paragraph of Article 44 of the Statute, the following rule shall apply:
An application for revision of a judgment may exceptionally be made to the Community Patent Court on discovery of a fact which is of such a nature as to be a decisive factor, and which, when the judgment was given, was unknown to the party claiming the revision, and only on the grounds of a fundamental procedural defect or of an act which was held, by a final court decision, to constitute a criminal offence.
Article 18
The parties may, at any time in the course of proceedings, conclude their case by way of settlement confirmed by a decision of the Community Patent Court. The settlement cannot affect the validity of a Community patent.
Article 19
The first and second paragraphs of Article 54 of the Statute shall apply mutatis mutandis to the Community Patent Court.
Article 20
Where the Court of Justice is seised of a case in which the same issue of interpretation is raised, or where the Court First Instance is seised of a case in which the validity of the same Community patent is called in question, the Community Patent Court may, after hearing the parties, stay proceedings before it until such time as the Court of Justice or the Court of First Instance shall have delivered judgment.
Where an opposition against the grant of a European patent designating the Community is filed with the European Patent Office, the Community Patent Court, seised of an invalidity action, may, after hearing the parties, stay proceedings until such time as a final decision is issued on the opposition.
Article 21
Article 55 of the Statute shall apply subject to the condition that Member States and institutions of the Communities which have neither intervened nor been a party to the case shall only receive the final decision of the Community Patent Court.
Article 22
Final decisions of the Community Patent Court shall be enforceable if they are no longer subject to appeal. Appeal shall have suspensory effect. However, the Community Patent Court may declare its decisions enforceable while, if necessary, subjecting enforcement to the provision of security.
The order for its enforcement is appended to the decision by the Community Patent Court. Decisions shall be enforceable against Member States.
The Community Patent Court may order that non-compliance with its decisions or orders constituting an obligation to act or to abstain from an act shall be sanctioned by a penalty payment. The penalty payment may consist in a single or a recurrent fine. The individual fine must be proportionate and may not exceed EUR 50 000.
Article 23
Appropriate court fees will be charged for proceedings before the Community Patent Court.
A schedule of fees shall be adopted by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament and the Court of Justice or at the request of the Court of Justice and after consulting the European Parliament and the Commission.
Court fees shall be paid in advance. Any party which has not paid the prescribed court fees may be excluded from further participation in the proceedings.
Article 24
The Community Patent Court may hold hearings in Member States other than that in which its seat is located.
Article 25
The Community Patent Court shall conduct proceedings in the official EU language of the Member State where the defendant is domiciled, or in one of them to be chosen by the defendant, where in a Member State there are two or more official EU languages. Where the defendant is not domiciled in a Member State, the Community Patent Court will conduct the proceedings in the official EU language in which the Community Patent was granted.
At the request of the parties, and with the consent of the Community Patent Court, any official EU language can be chosen as language of proceedings.
The Community Patent Court may, in accordance with the Rules of Procedure, hear parties in person, witnesses and experts in a language other than the language of proceedings. In that case the Registrar shall cause everything said during the oral procedure to be translated into the language of proceedings and, at the request of any party, into the language used by that party in accordance with the Rules of Procedure.
The Community Patent Court may, in accordance with the Rules of Procedure, allow the submission of accompanying documents drawn up in a language other than the language of proceedings. It may at any time order that party to produce a translation of such documents into the language of proceedings.
Article 26
An appeal against a final decision of the Community Patent Court may be brought before the Court of First Instance within two months of the notification of the decision appealed against.
An appeal against a decision of the Community Patent Court made pursuant to Article 243 of the Treaty or the fourth paragraph of Article 256 thereof or pursuant to the second paragraph of Article 14 of this Annex may be brought before the Court of First Instance within two months of its notification. However, if the order has been made without a prior hearing of the party adversely affected, that party may, within two months of the notification, lodge an objection with the Community Patent Court, whose decision shall be subject to an appeal to the Court of First Instance.
An appeal against a decision of the Community Patent Court dismissing an application to intervene may be brought before the Court of First Instance within two weeks of its notification.
The Rules of Procedure may determine the situations and conditions under which an appeal may be brought against decisions of a procedural nature taken by the Community Patent Court in the course of proceedings.
An appeal as provided for in paragraphs 1 to 4 may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. The appeals referred to in paragraphs 2 and 3 shall be heard and determined under the procedure referred to in Article 39 of the Statute.
Article 27
The appeal may be based on points of law and matters of fact.
An appeal on points of law shall lie on the grounds of lack of competence of the Community Patent Court, a breach of procedure before it which adversely affects the interests of the appellant, or an infringement of Community law by the Community Patent Court.
An appeal on matters of fact shall lie on the grounds of a re-evaluation of the facts and evidence submitted to the Community Patent Court. New facts and new evidence may only be introduced if their submission by the party concerned could not reasonably have been expected during proceedings at first instance.
No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.
Article 28
If the appeal is well founded, the Court of First Instance shall quash the decision of the Community Patent Court and give final judgment. The Court of First Instance may in exceptional circumstances and in accordance with the Rules of Procedure refer the case back to the Community Patent Court for judgment.
Where a case is referred back to the Community Patent Court, it shall be bound by the decision of the Court of First Instance on points of law.
Article 29
The Rules of Procedure of the Community Patent Court shall contain any provision necessary for applying and, where required, supplementing this Annex."
Chapter II
Appeal proceedings before the Court of First Instance
Article 5
Number of Judges of the Court of First Instance
Article 48 of the Protocol on the Statute of the Court of Justice is replaced by the following:
"Article 48
The Court of First Instance shall consist of 18 Judges."
Article 6
Community Patent appeal proceedings
The following Article is inserted into the Protocol on the Statute of the Court of Justice:
"Article 61a
A specialised patent chamber of the Court of First Instance with three Judges shall hear appeals against decisions of the Community Patent Court.
Without prejudice to the fifth paragraph of Article 17 and Article 50, the Judges of the patent appeal chamber shall be chosen from candidates having an established high level of legal expertise in patent law and appointed on the basis of their expertise.
Article 7 and Articles 10 to 23 of Annex [II] to the Statute shall apply to the appeal procedure before the patent chamber of the Court of First Instance mutatis mutandis. Member States and institutions of the European Community shall have the right to intervene in accordance with the first paragraph of Article 40.
The appeal proceedings shall be conducted in the language of proceedings in which the case was conducted before the Community Patent Court. The second, third and fourth paragraphs of Article 25 of Annex [II] to the Statute apply."
Chapter III
Final provisions
Article 7
Transitional provisions
The first President of the Community Patent Court shall be appointed for a term of three years in the same manner as its members. However, the Council may decide that the procedure laid down in Article 4 of Annex [II] to the Protocol on the Statute of the Court of Justice shall apply.
Immediately after all members of the Community Patent Court have taken oath, the President of the Council shall proceed to choose by lot the Judges whose terms of office are to expire at the end of the first three years.
Article 8
Entry into force
Following its publication in the Official Journal of the European Union, this Decision shall enter into force on the day following notification by the last Member State of its acceptance of the provisions of Council Decision 2003/.../EC taken pursuant to Article 229a of the EC Treaty conferring jurisdiction on the Court of Justice relating to the Community Patent.
Article 1 of Annex [II] to the Protocol on the Statute of the Court of Justice shall become applicable on the date on which Council Decision 2003/.../EC conferring jurisdiction on the Court of Justice relating to the Community patent enters into force.
Done at Brussels, [...]
For the Council
The President
[...]
LEGISLATIVE FINANCIAL STATEMENT
Policy area: Industrial Property
Activity: Creation of the Community patent jurisdiction
Title of action: Proposal for a Council decision establishing the Community Patent Court and concerning appeals before the Court of First Instance
1. BUDGET LINE(S) + HEADING(S)
Section IV - Court of Justice
2. OVERALL FIGURES
The creation of the Community patent jurisdiction has a financial impact on part A of the budget (human resources and other administrative expenditure). Community patent litigation brings a new type of litigation under the jurisdiction of the Court of Justice but also a considerable quantity of new cases in a specialised field which consequently requires new staff to handle cases. With the increasing number of Community patents being granted, the number of new cases before the Community Patent Court will rise sharply. The European Patent Office can be expected to grant each year 50 000 new Community patents which would, in view of a litigation rate of around 1 per 1 000 patents in force, increase the number of new proceedings at first instance by about 50 per year. In about 25% of the cases decided by the Community Patent Court an appeal to the Court of First Instance is likely to be filed. The resources which are considered necessary for the initial phase of the Community patent jurisdiction till 2014 can be brought in gradually according to the type and size of the tasks to be handled. Where additional staff are brought in, the calculation of the financial impact of human resources follows the general practice in this matter, i.e. newly created posts in the year of their creation are only calculated on a six-month basis.
- Necessary resources in the first five years of operation (2010-2014)
At the level of the Community Patent Court seven judges (including the president) have been considered appropriate to fulfil its function in the initial phase. Even before the new jurisdiction can start up its function, the judges will, according to Article 225a i of the EC Treaty, need to establish the first codification of a Community civil procedure law which in itself is a major undertaking. In the initial phase, a number of key decisions on fundamental questions will need to be taken by an enlarged bench. Each judge will need to be assisted by one legal secretary and one clerical secretary.
The highly technical Community patent litigation will also have consequences for the Court of First Instance hearing cases on appeal. With a view to the highly specialised and technical subject matter, a patent appeal chamber will need to be set up with three additional specialised judges at the Court of First Instance. Each judge will need to be assisted by at least one legal and one clerical secretary.
In addition, the special nature of patent litigation which deals with a subject matter involving the latest technological developments requires not only lawyers on the bench but also the attendance of technical experts. The Council in its 3 March 2003 common political approach decided that technical experts shall assist the judges throughout the handling of a case. To cover the more than 70 fields of technology, seven such technical experts (assistant rapporteurs) are foreseen for the first instance Community Patent Court in the following sub-divisions i inorganic chemistry and materials science, i organic and polymer chemistry, (3) biochemistry and biotechnology, i general physics, i mechanical engineering, i information and communication technology and (7) electrical engineering. With a view to the preparation of the technical questions raised by a case during first instance proceedings, the assistance of a reduced number of three technical experts during the appeal proceedings before the Court of First Instance in the more general sub-divisions chemistry, physics and mechanics would seem sufficient.
The Community Patent Court would also need a registrar who would be supported by six officials in the registry. The registry would need to operate in a particularly complex environment. The registry of the Community Patent Court would be responsible not only for keeping the register but also for the correspondence with parties and their legal representatives from all over the world, as cases could even involve e.g. two parties from non EU countries. The registry would need to be able to process incoming private party litigation in all of the official languages of the Community. It would have to respond orally and in writing to requests made by the parties (e.g. request for information on state of the case, scheduling of hearings etc.) or the judges (e.g. request for additional information, missing documents etc.). In order to safeguard the proper functioning of the court, such day to day contact between the parties and the court will not be able to rely on the regular translation or interpretation services but will have to be provided by the registry directly. Moreover, the registry would also be responsible for cooperation with the national authorities enforcing the decisions of the Community Patent Court under Articles 244, 256 of the EC Treaty. The Community Patent Court will only deliver the judgment whereas the terms of the judgment must be enforced by the competent authorities in the Member States. The registry must ensure communication in the official language of the Member State where the decision of the Community Patent Court is enforced.
A lecteur d'arrêt appears to be necessary in order to verify that the judgment, drafted by judges in a language which is not necessarily their mother tongue, is linguistically correct. This is current practice at the Court to safeguard quality standards and must also be provided for with respect to decisions of the new Community Patent Court and the patent chamber of the Court of First Instance. A researcher seems necessary in order to research the legislation and jurisprudence in Member States to provide data for the Community patent jurisdiction that is necessary to establish Community jurisprudence in this field. As jurisdiction in private party patent litigation will be completely new to the Community legal order, the researchers would be indispensable to investigate the existing concepts in Member States in order to allow the court to take them sufficiently into account when considering new cases. An additional legal secretary for the Advocate General seems necessary in view of review procedures under Article 225 i of the EC Treaty before the Court of Justice against decisions of the Court of First Instance. All the patent decisions of the Court of First Instance would need to be evaluated as to their unity and consistency with Community law. Where there is a serious risk that Community law might be affected, this person would support the Advocate General in the necessary proceedings before the Court of Justice. Apart from the staff that will be necessary to operate the Community Patent Court as such, the proposals must also provide the necessary reinforcement of the translation service. Finally the establishment of an IP library will be essential for the new jurisdiction. The relevant publications (from all Member States) such as law books, periodicals and collections of court decisions and also publications on all fields of technology as well as access to legal and technical data bases will need to be provided for.
- Phasing in of human resources
The new jurisdiction will necessarily go through a period in which staff may be recruited gradually according to the type and size of the tasks to be handled.
In the year before the estimated start of the Community jurisdiction, which is foreseen for 2010, a reduced number of staff will suffice for the necessary preparations. Only the judges with secretarial support will need to be appointed. It is important that all the judges are present from this moment. They will have to prepare the Rules of Procedure for patent proceedings which according to Articles 224 i, 225a i of the EC Treaty are adopted by the judges themselves. At this stage a librarian would also need to begin with the preparations to establish the IP library. Consequently a reduced figure of 14 staff has been introduced for the year 2009 in tables 2.3c), 7.1.
A considerable (but not yet the full) number of staff is only necessary as from the point when the Community patent jurisdiction takes up its function in 2010 (see increased expenditures set out accordingly in tables 2.3(c) and 7.2. A total of 70 personnel seems appropriate at the start of the new jurisdiction in order to fulfil its functions properly. This includes first of all the seven judges of the Community Patent Court. In particular in the initial phase, a number of key decisions on fundamental questions need to be taken by the court in which they establish important case law. Such decisions should be taken by an enlarged bench instead of a chamber of three judges. This number of judges is also necessary in order to guarantee a smoothly operating jurisdiction in case of sickness or leave of a judge. As concerns the three judges of the patent appeal chamber of the Court of First Instance, it is important to note that appeals will be filed from the time when the system becomes operational, in particular concerning interim measures or evidence-protection measures. Furthermore all the technical experts, seven for the Community Patent Court and three for the Court of First Instance, need to be present from the start of the operation. Cases may come from any of the existing fields of technology and as a consequence this number cannot be reduced in this initial phase. The president of the Community Patent Court who will apart from his jurisdictional functions also have to deal with administrative matters and the representation of the first private party Community jurisdiction will need to be assisted in his work by a chef de cabinet from the beginning. A lecteur d'arrêt for the Community Patent Court and the Court of First Instance will be necessary from the first year of operation since decisions will be delivered right from the start by both courts.
However, five legal secretaries for the Community Patent Court and two for the Court of First Instance, ten clerical secretaries and one researcher will suffice for this initial period of operation of the Community patent jurisdiction. Finally, in view of the case load of this initial phase, a first (modest) reinforcement of the translation and interpretation capacities of the Court of Justice by ten translators and ten interpreters seems sufficient.
Certain posts can be phased in at a later stage as the case load rises. (see increase of expenditure in tables 2.3(c), 7.3 and 7.4 below). This concerns secretarial support, where eleven further staff are foreseen for 2012. For 2014, three further legal secretaries are foreseen for the judges of the Community Patent Court and the Court of First Instance so that each judge finally will be assisted by one legal secretary. In the same year, one additional legal secretary for the Advocate General for review proceedings seems necessary as the judgments of the Court of First Instance on appeal against decisions of the Community Patent Court will have reached a number where their scrutiny in view of possible review proceedings justifies an additional post. Also a second researcher would only be necessary in 2014 as the case load increases. Finally, the translation and interpretation capacities of the Court of Justice can be expanded in relation to increasing case load on a step-by-step basis, i.e. by another ten staff in 2012 and another eighteen in 2014. The total staff for the Community patent jurisdiction will thus by 2014 amount to 114 posts.
2.1. Total allocation for action (Part B): EUR million for commitment
None
2.2. Period of application:
Start: 2009
Expiry: open ended
2.3. Overall multiannual estimate of expenditure:
(a) Schedule of commitment appropriations/payment appropriations (financial intervention) (see point 6.1.1)
Not applicable
(b) Technical and administrative assistance and support expenditure (see point 6.1.2)
Not applicable
(c) Overall financial impact of human resources and other administrative expenditure (see point 7)
>TABLE POSITION>
>TABLE POSITION>
2.4. Compatibility with financial programming and financial perspective
Not applicable
2.5. Financial impact on revenue:
[...] Proposal has no financial implications (involves technical aspects regarding implementation of a measure)
OR
[X] Proposal has financial impact - the effect on revenue is as follows:
The proposal provides that parties will be charged appropriate court fees for Community patent litigation at first and second instance (See Article 23 of Annex II the Statute). However, the amount of revenue cannot be estimated at present. The amount to be charged would need to strike the right balance between the principle of a fair access to justice and an adequate contribution of the parties for the services rendered by the Community patent jurisdiction to solve their private disputes. In any case, the revenues from court fees will only contribute in a modest way to cover the overall incurred costs and could by no means be expected to lead to a self financing system. A schedule of fees laying down the exact fees to be paid will be adopted by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament and the Court of Justice or at the request of the Court of Justice and after consulting the European Parliament and the Commission.
3. BUDGET CHARACTERISTICS
>TABLE POSITION>
4. LEGAL BASIS
Articles 225a, 245 of the EC Treaty.
5. DESCRIPTION AND GROUNDS
5.1. Need for Community intervention
5.1.1. Objectives pursued
The proposed Council Decision is part of the overall project to establish the Community patent system. By way of revision of the European Patent Convention and accession of the Community to the same, the European Patent Office shall be empowered to grant Community patents which will confer rights on their holders according to the regulation of the Council on the Community patent. Disputes concerning in particular the infringement and validity of these rights shall, after a transitional period, be brought before a Community jurisdiction. These measures shall reform the system of patent protection in Europe, which has been characterised by national patent titles enforceable before national courts, and make the necessary adaptations for the needs of European industry which increasingly operates trans-nationally within the common market. The measures are designed to increase the competitiveness of the Union's innovative industries by creating a Community wide uniform patent protection which can be enforced before a single Community jurisdiction rendering decisions with Community wide effect.
Within this overall project, the objective of the present proposal is to establish a Community Patent Court for first instance Community patent litigation and to provide for the necessary provisions with a view to accommodating the new function of the Court of First Instance as appeal instance against decisions of the Community Patent Court.
5.1.2. Measures taken in connection with ex ante evaluation
The necessity to create a patent system covering the Community as a whole has been recognised for decades. The first initiative to create such a system resulted in the European Patent Convention of 5 October 1973 which harmonised the grant of the European patent by the European Patent Office but neither included provisions on the rights conferred by such a patent nor created a single jurisdiction to deal with disputes. This is still left to national legislation and jurisdiction of the Contracting States. In a second initiative, EC Member States tried to create a Community patent on the basis of an international agreement including an integrated jurisdiction. The Community Patent Convention was signed on 15 December 1975 in Luxembourg followed by the 15 December 1989 agreement relating to the Community patent which included a protocol on the settlement of litigation concerning the infringement and validity of Community patents. The Convention however never entered into force. In the context of the Amsterdam European Council of June 1997 (action plan for the single market), the Commission published a green paper on the promotion of innovation by patents. The consultations on the green paper including the comments made in the hearing on 25 and 26 November 1997 showed clear support for the creation of a Community patent system. Finally, the Lisbon European Council in March 2000 took up the issue and called for the creation of a Community patent system. The Council in its 3 March 2003 common political approach reached agreement on a number of key issues of the Community patent system including the jurisdictional aspects calling for the establishment of the Community Patent Court on the basis of Article 225a of the EC Treaty.
5.2. Action envisaged and budget intervention arrangements
The proposal constitutes a major element of the envisaged Community patent system. It contains the necessary legal provisions to set up a Community Patent Court which will deal with the Community patent related disputes for which jurisdiction is conferred on the Court of Justice. It also contains necessary provisions with a view to accommodating the new function of the Court of First Instance as appeal instance against decisions of the Community Patent Court. An efficiently functioning Community patent jurisdiction requires adequate resources. Court staff need to be employed (judges, registrar, assistant rapporteurs, legal secretaries, lecteurs, researchers, secretaries, translators, interpreters, librarian), court rooms and equipment (office equipment, ICT facilities, library) have to be provided.
5.3. Methods of implementation
The necessary staff identified in 5.2. will be regular staff employed by the Court of Justice.
6. FINANCIAL IMPACT
6.1. Total financial impact on Part B - (over the entire programming period)
Not applicable
6.2. Calculation of costs by measure envisaged in Part B (over the entire programming period)
Not applicable
7. IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE
7.1 The year before the Community patent jurisdiction becomes operational (2009)
The following tables show the impact on staff and administrative expenditures in 2009, the year before the Community patent jurisdiction becomes operational.
7.1.1. Impact on human resources
>TABLE POSITION>
7.1.2. Overall financial impact of human resources
>TABLE POSITION>
The amounts are total expenditure for twelve months.
7.1.3. Other administrative expenditure deriving from action in 2009
>TABLE POSITION>
The amounts are total expenditure for twelve months.
1 Specify the type of committee and the group to which it belongs.
>TABLE POSITION>
7.2. First two years of operational Community patent jurisdiction (2010-2011)
The following tables show the impact on staff and administrative expenditures in 2010 -2011, the first two years from the start of the Community patent jurisdiction.
7.2.1. Impact on human resources
>TABLE POSITION>
7.2.2. Overall financial impact of human resources
7.2.2.1. Overall financial impact on human resources in 2010
>TABLE POSITION>
The amounts are total expenditure for twelve months. Newly created posts in 2010 are calculated for six months.
7.2.2.2. Overall financial impact on human resources in 2011
>TABLE POSITION>
The amounts are total expenditure for twelve months.
7.2.3. Other administrative expenditure deriving from the action
7.2.3.1. Other administrative expenditure deriving from action in 2010
>TABLE POSITION>
The amounts are total expenditure for twelve months.
1 Specify the type of committee and the group to which it belongs.
7.2.3.2. Other administrative expenditure deriving from action in 2011
>TABLE POSITION>
The amounts are total expenditure for twelve months.
1 Specify the type of committee and the group to which it belongs.
>TABLE POSITION>
7.3. Third and fourth year of operation of the Community patent jurisdiction (2012 - 2013)
The following tables show the impact on staff and administrative expenditures in 2012 and 2013, the third and fourth year of the operation of the Community patent jurisdiction.
7.3.1. Impact on human resources
>TABLE POSITION>
7.3.2. Overall financial impact on human resources
7.3.2.1. Overall financial impact on human resources in 2012
>TABLE POSITION>
The amounts are total expenditure for twelve months. Newly created posts in 2012 are calculated for six months.
7.3.2.2. Overall financial impact on human resources in 2013
>TABLE POSITION>
The amounts are total expenditure for twelve months.
7.3.3. Other administrative expenditure deriving from action in each of the years 2012 and in 2013
>TABLE POSITION>
The amounts are total expenditure for twelve months.
1 Specify the type of committee and the group to which it belongs.
>TABLE POSITION>
7.4. End of the initial phase (2014)
The following tables show the impact on staff and administrative expenditure in 2014 marking the end of the initial phase when the staffing of the Community patent jurisdiction will be completed.
7.4.1. Impact on human resources
>TABLE POSITION>
7.4.2. Overall financial impact of human resources
>TABLE POSITION>
The amounts are total expenditure for twelve months. Newly created posts in 2014 are calculated for six months.
7.4.3. Other administrative expenditure deriving from the action
>TABLE POSITION>
The amounts are total expenditure for twelve months.
1 Specify the type of committee and the group to which it belongs.
>TABLE POSITION>
8. FOLLOW-UP AND EVALUATION
8.1. Follow-up arrangements
The Council in its 3 March 2003 common political approach (point 5) foresees a review mechanism of the Community patent system including the jurisdictional arrangements. Regarding the contents of the present Decision, the organisation of the Community Patent Court and the provisions of the Statute of the Court of Justice relating to the work of the Community Patent Court at first instance and the Court of First Instance on appeal would have to be reviewed in the light of experience gathered. The Commission will need to consult the Court of Justice and interested circles to collect data on the functioning of the Community patent jurisdiction and will have to evaluate the collected data and where appropriate suggest changes to the current Decision.
8.2. Arrangements and schedule for the planned evaluation
On the basis of the common political approach adopted by the Council on 3 March 2003, the Commission will present a report on the functioning of all aspects of the Community patent including the jurisdictional arrangements five years after the grant of the first Community patent. Further reviews will be made periodically.
9. ANTI-FRAUD MEASURES
This does not apply. The proposal deals with the establishment of a Community Patent Court and the appeal procedure before the Court of First Instance and does not cover a policy area with a risk of fraud.
IMPACT ASSESSMENT FORM THE IMPACT OF THE PROPOSAL ON BUSINESS WITH SPECIAL REFERENCE TO SMALL AND MEDIUM-SIZED ENTERPRISES( SMEs)
Title of proposal
Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance.
Document reference number
[...]
The proposal
1. Taking account of the principle of subsidiarity, why is Community legislation necessary in this area and what are its main aims?
The object of the Community patent system is to provide a Community wide patent protection which can be enforced before one single court operating to uniform standards and whose decisions enjoy Community wide effect. This objective can only be achieved at a Community level.
The impact on business
2. Who will be affected by the proposal?
- which sectors of business
All sectors of business that deal with technical inventions which can be subject to patent protection are concerned by the Community patent system. They can in case of conflict be party to litigation before the Community jurisdiction.
- which sizes of business (what is the concentration of small and medium-sized firms)
Potentially every size of business can be a party to Community patent litigation before the Community patent jurisdiction. For example, the holder of a Community patent may as a plaintiff wish to enforce his rights flowing from the Community patent title before the Community Patent Court. A third person may as a plaintiff wish to attack the validity of such a Community patent granting exclusive rights to its holder that he considers to be invalid. As defendant the right holder may wish to defend the validity of his patent or as a third person defend himself against an alleged infringement of a Community patent.
The Community patent system intends to make patenting of inventions more attractive especially for SMEs which will particularly increase the significance for this group. So far patenting is done in or with effect for individual Member States and the enforcement must take place before the national courts of the respective Member States their national patent law and their national legislation on the court procedure which is particularly cumbersome for SMEs. The Community patent jurisdiction will allow to enforce a unitary patent right valid in the entire Community in one single court procedure operating to common standards.
3. What will business have to do to comply with the proposal?
The effect for businesses will be felt only in cases of litigation over a Community patent. In that case they have to familiarise themselves with the proceedings before the Community patent jurisdiction.
4. What economic effects is the proposal likely to have?
The proposal will only have an economic effect in combination with the other legal instruments creating a Community patent system. The Community patent system as a whole will have a positive economic impact. In particular:
- on investment and the creation of new businesses
The Community patent system will have a positive impact on investments due to a better Community wide legal protection of inventions. The return on investments in innovative technologies will be more secure serving as an incentive for more investment. Moreover, since better legal protection will be rendered less costly, businesses will be able to make more efficient use of their existing budget for research and development which will lead to more inventions which in turn will stimulate investments to economically exploit these inventions. Since effective patent protection often serves as the legal basis for an economically successfully operating business, a more comprehensive, easier and less costly patent protection will promote the creation of new businesses.
- on the competitiveness of businesses
The Community patent system will make patent protection more effective, easier and less costly not only for those businesses that already make use of patent protection but also make patenting more easily accessible for other businesses and in particular for SMEs. The possibility to protect an invention and with it the associated investment into it with Community wide effect will increase the ability of all businesses that make use of this possibility to compete in the common market. Moreover, the competitiveness of European industry will be increased on a global scale compared to the major trading partners and competitors. Today patent protection, for example in the United States or Japan, is considerably less costly than in Europe under the national and the European patent system. Consequently US and Japan based companies can develop patented products at a considerably lower price which later are marketed world wide. The Community patent system intends to eliminate this obstacle for the competitiveness of the European industry.
- on employment
An increased investment in inventive technologies and a strengthened competitiveness of the European industry will lead to the creation of new jobs. The creation of new jobs can be expected across the full range of technical fields and their related industries. In particular the modern, innovative technologies which are playing a steadily increasing role in a knowledge based global economy will benefit.
5. Does the proposal contain measures to take account of the specific situation of small and medium-sized firms (reduced or different requirements etc)?
This does not apply. No distinction according to the size of companies can be made with regard the establishment, the organisation and the procedure before the Statute the Community Patent Court and the Court of First Instance on appeal.
Consultation
6. List the organisations which have been consulted about the proposal and outline their main views:
The necessity to create a patent system covering the Community as a whole has been recognised for decades. The first initiative to create such a system resulted in the European Patent Convention of 5 October 1973 which harmonised the grant of the European patent by the European Patent Office but neither included provisions on the rights conferred by such a patent nor created a single jurisdiction to deal with disputes. This was still left to national legislation and jurisdiction of the Contracting States. In a second initiative, EC Member States tried to create a Community patent on the basis of an international agreement including an integrated jurisdiction. The Community Patent Convention was signed on 15 December 1975 in Luxembourg followed by the 15 December 1989 agreement relating to the Community patent which included a protocol on the settlement of litigation concerning the infringement and validity of Community patents. The Convention however never entered into force. In the context of the Amsterdam European Council of June 1997 (action plan for the single market), the Commission published a green paper on the promotion of innovation by patents. The consultations on the green paper including the comments made in the hearing on 25 and 26 November 1997 showed clear support for the creation of a Community patent system. Finally, the Lisbon European Council in March 2000 took up the issue and called for the creation of a Community patent system. The Council in its 3 March 2003 common political approach reached agreement on a number of key issues of the Community patent system including the jurisdictional aspects calling for the establishment of the Community Patent Court on the basis of Article 225a of the EC Treaty.