United Patent Litigation System

Europe

• Unitary patent & UPC
• EPO
  • EPO case law
• European Patent Convention
• Swpat directive 2005
• Cat:Member States

The United Patent Litigation System (UPLS) is proposal of the European Commission, launched in April 2007, to create a central court for patent litigation in the European Union.

The UPLS has since been replaced by the EU unitary patent and Unified Patent Court.

UPLS is seen as likely to produce a court which would uphold EPO's software patents.

UPLS is generally seen as the replacement for the EPLA, and is sometimes even called EU-EPLA.

UPLS is part of the plan for a unified European patent jurisdiction.

The dangers

Can you help? This very well might be out of date; in at the least, it needs dates added

Danger #1: EPO controlling nominations. There was a proposal to put the EPO in charge of nominating judges and reviewing these judges every five years. The EPO claims that correct reading of the European Patent Convention (EPC) requires that patents be granted for software ideas. If the EPO can nominate judges, it will surely verify that they read the EPC "correctly", thus creating a court that will uphold the EPO's software patents.

Danger #2: Patent lawyers as judges. To make a specialist court, it might seem like common sense to seek judges with knowledge of that specialist topic. The problem here is that the largest group of people with specialist experience in this area are people who used to be patent lawyers, and patent lawyers are significantly more likely to see software ideas as patentable.

Proposals from the European Commission

In April 2007, the EC said:

The way forward could be to reflect on the creation of a unified and specialised patent judiciary, with competence for litigation on European patents and future Community patents. This system could be inspired by the EPLA model but could allow for integration in the Community jurisdiction.

On membership scope, a March 2009 press release said:

The UPLS should be created by the conclusion of an agreement in accordance with the procedure foreseen by Article 300 EC involving the Community, its Member States and other Contracting States of the European Patent Convention (EPC).

Relationship to other initiatives

According to the European Commission:

The court structure to be established in the framework of the UPLS would have jurisdiction both for existing European patents and for future Community patents.

Avoiding ECJ oversight

Advocates of the UPLS have recommended minimising the ability of the European Court of Justice (ECJ) to review the UPLS court's rulings:

"Upon the request of one member state Art. 48 of the present paper provides for the possibility of a legal review by the ECJ (“cassation”) against decisions of the Court of Appeal. This proposal has been largely opposed by user and expert groups and a clear majority of member states. [...] It has therefore been requested that the ECJ should only be involved if the Court of Appeal files a reference for preliminary ruling under Art. 234 of the EC Treaty whenever European Community law is an issue. [...] it has also been suggested to include into the draft paper an express clause which would make it clear that substantive patent law [...] should not be the subject of preliminary rulings by the ECJ."

ECJ oversight would be good because the judges on the ECJ are independent from the patent offices and other flaws in the UPLS proposal, so minimising the ECJ's role is another negative change.

Compatible with the Lisbon Treaty?

It might be incompatible with the Treaty establishing the European Community (which, since the Lisbon Treaty, is called Treaty on the functioning of the European Union).

A priority for the Swedish presidency, 2009

The UPLS was been made a priority for the Swedish presidency and for the Council of Ministers for 2009 and 2010: "...finding solutions and reaching agreement in both areas as a matter of urgency" This was reiterated on September 2nd 2009 by the Swedish Minister for Justice when addressing the European Parliament's Legal Affairs committee ("juri").

The Swedish presidency has organised a meeting on the UPLS for December 15 & 16.[1]

Related pages on ESP Wiki

• European Patent Litigation Agreement
• EU Community Patent
• Forum shopping
• Litigation

External links

Official documents

• The European Commission's page on Industrial Property, which often contains news about UPLS
• Draft Agreement on the European and Community1 Patents Court and Draft Statute - Revised Presidency text - March 2009
• Denmark notes that parliamentary approval will be necessary
• The March 2009 recommendation which gives the European Commission with a directive to negotiate in this matter
• The EPO's page

Third-party articles

• What's wrong with the United Patent Litigation System (UPLS)?, by Benjamin Henrion
  • Presentation slides (javascript required)
• EDRI-gram article
• FFII PR: European Commission pushes for software patents via a trusted court, May 2009
• Uniform Interpretation Of European Patent Law With A Special View On The Creation Of A Common Patent Court, A 432-page thesis, September 2009
• Axel Horns explains what's necessary for agreement, Nov 2009
• Axel Horns on the status, Feb 2010
• What's wrong with the UPLS?, 2010, Benjamin Henrion of FFII