Changes to court rules to enable unified patent court reforms backed by EU Ministers

The European Commission proposed the changes to the Brussels Regulation in the summer and the plans have now received the backing of the EU's Council of Ministers. The European Parliament has to back the proposals before they can be introduced into law. MEPs are expected to vote on the proposals in March next year.

A unified patent court system forms part of reforms to the framework for patent protection within the EU that most EU countries support. The new framework envisaged would allow businesses to obtain unitary patents offering protection across multiple jurisdictions by making just a single application for that protection.

"The [unified patent] court will have specialised jurisdiction in patent disputes, avoiding multiple litigation cases in up to 28 different national courts," the European Commission said in a statement. "This will cut costs and lead to swift decisions on the validity or infringement of patents, boosting innovation in Europe. It is part of a package of measures recently agreed to ensure unitary patent protection in the Single Market."

An agreement paving the way for a new unified patent court framework to be created was signed by ministers from 24 EU countries earlier this year. The agreement must be ratified by at least 13 national parliaments, which must include the UK, France and Germany. Austria became the first EU member state to ratify the agreement at the end of August.

If established, the new system would be used for resolving disputes relating to the validity and infringement of proposed new unitary patents. These are currently proposed under separate legislation, and would enable businesses to protect their monopoly over their inventions across those EU member states that sign up to the scheme by filing a single patent at the European Patent Office (EPO). Under the current process, EU-wide protection is only available to those who validate a patent registered with the EPO in each individual member state. The patent must be translated into the language of each state in order to be valid.

Under the new unitary patent rules, which were backed by MEPs and EU Ministers in 2012, a European patent holder would make only one application to the EPO for patent protection across the EU countries that sign up to the scheme, with successful patents being initially published in English, French or German and eventually translated into all three languages. Applications for unitary patent protection not made in any of those languages would have to be translated in order to be considered, although applicants would be compensated for the cost of this.

Part of the reforms requires the creation of a new legal framework under which a new unified patent court system would operate. The system would involve local, regional and central divisional courts hearing disputes. Under plans backed by most EU countries in February, London would be the base for a new central division of the unified patent court and would be responsible for handling disputes relating to pharmaceutical patents. The other central divisional courts would be based in Paris and Munich.

"Today’s progress will allow the Parliament and Council to adopt the new rules without delay," the EU's Justice Commissioner Viviane Reding said in a statement. "This is good news for Europe’s single market. Removing bureaucratic obstacles, extra costs and the legal uncertainty of having 28 different and often contradictory systems makes the single market more attractive."

However, leading technology companies including Google, Apple, Samsung and Microsoft have raised concerns about the draft legal framework that has been proposed which fleshes out some of the detail about how the new unified patent court system would operate.

In an open letter published in September, the 16 signatory companies warned that the draft rules could create "significant opportunities for abuse" from patent assertion entities (PAEs), popularly known as 'trolls'.

Patent law specialist Deborah Bould of Pinsent Masons, the law firm behind Out-Law.com, previously warned that the unified patent court framework could be exploited by 'forum shoppers'. Forum shoppers are parties which choose countries to take legal action in based on where they think they would be most likely to win.