Feeling the chill ...
All the way from Brussels is the latest (7 October 2011) version of the Draft agreement on a Unified Patent Court and draft Statute - Revised Presidency text, which you can read in its magnificent fullness here. Changes to the draft are underlined, which at least makes them easier find, if not necessary to swallow. As the document states, this is:
" a revised Presidency compromise proposal concerning the draft agreement, to serve as the basis for the discussions at the technical drafting session to be held from 12 to 14 October 2011 in Warsaw. 
Changes in relation to the previous version (13751/11 + COR 1) are marked".
This Kat isn't going to have much time between now and the beginning of the Warsaw technical drafting session to dedicate the time to this 100-page document that it deserves, but he hopes that some of his readers will be able to do so. He can tell them that there are a few interesting marked changes in the following places:
  • Article 6: Composition of the panels of the Court of First Instance
  • Article 7: The Court of Appeal
  • Article 13: Pool of Judges
  • Article 14e: Sources of Law
  • Article 14h: Limitations of the effects of the European patent
  • Article 15a: Competence of the divisions of the Court of First Instance
  • Article 15b: Relation with the jurisdiction of courts of States not party to this Agreement
  • Article 18: The Budget of the Court (Merpel wonders if anyone has thoughts about this:
"Art.18(3) Court fees shall be fixed by the Administrative Committee. The Court fees shall be fixed at such a level as to ensure a right balance between the principle of fair access to justice, in particular for small and medium-sized enterprises and micro entities and an adequate contribution of the parties for the costs incurred by the Court, recognising the economic benefits to the parties involved, and the objective of a self-financing Court with balanced finances. The level of the Court fees shall be reviewed periodically by the Administrative Committee. Targeted support measures for small and medium-sized enterprises and micro entities might be considered".
  • Article 55: Rehearing
  • Article 58: Transitional period
Another choice document which affects the future of European patent litigation and the unitary patent court proposal is this non-paper (official title "Compatibility of the draft agreement on the Unified Patent Court with the Union acquis - Non-paper from the Commission services"), which calls for a clarification of the relationship between the Brussels I Regulation and the draft agreement on the Unified Patent Court in the manner which it suggests earlier in the non-paper and concludes:
"... The Commission services recall that the revision of the Brussels I Regulation is ongoing before the co-legislators. In addition, changes to the draft UPC Agreement should be made. It does not appear that issues of compatibility with other Union instruments would arise. A technical analysis of each of the provisions of the draft UPC Agreement should continue. 
It is clear that many procedural matters will need to be regulated in the rules of procedure. It is obvious that such rules will also need to comply with the relevant Union legislation. The UPC Agreement should clearly provide for this and foresee a mechanism how such compliance with the acquis may be ensured".
In other words, there's still some work to do  -- and it can't be done till we get our hands on the proposed court's rules of procedure. These are crucial to the success of the system since their number, their complexity and their ease of compliance by litigating parties and their representatives will determine how well the system works -- and how much it costs, one of the main worries of many prospective patent litigants.  Merpel's still grumbling about this ugly Euro-speak in which the word 'foresee' is used where what is meant in traditional English is 'provide'.

The IPKat thanks the peerless Professor Steve Peers for both these leads.


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