EplaAnalysisEn

FFII Analysis of European Patent Litigation Agreement

[ EPLA | Community Patent | Consultation]



Contents

Introduction

The goals of European Patent Litigation Agreement (EPLA) are: improve the enforcement of European patents, enhance legal certainty and promote the uniform application and interpretation of European patent law.

While these goals may seem highly desirable, it is good to realise that in the United States a centralised patent litigation system was created some 25 years ago. In the U.S. the streamlined system has led to grave problems, companies want reform. With EPLA, litigation costs will go up, causing problems for Europe's strength: the Small- and Medium sized Enterprises. Since most patents are in practice currently enforced in only one jurisdiction, mandatory litigation in a centralised court will only increase costs without discernable advantage. The basic assumptions underlying the European Patent litigation Agreement need review.

EPLA itself is excessive. EPLA leads to an overconcentration of power in the hands of an uncontrollable group of people. The judges can be re-appointed after 6 years, which makes them dependent. Basically the same people will appoint the President and Vice-Presidents of the European Patent Office (EPO Office), the members of the internal EPO Office's Boards of Appeal and the judges of the European Patent Court. Members of the EPO Office's internal Boards of Appeal and members of national patent offices' Boards can be a judge at the European Patent Court at the same time! The executive takes over the judiciary. The software patents the European Patent Office granted (outside its competence) will be made enforceable this way. The reservoir of software patents will be unleashed. Furthermore, EPLA uses an outdated damages system, and EPLA does not have compulsory licenses. Retroactive liability opens the possibility for legal extortion. The language advantage is on the side of the patent applicant, the languages system is Western-Europe centered. U.S. style litigation will benefit litigators, not innovators.

EPLA creates an uncontrollable, excessive situation, for higher costs, without discernable advantage.

Analysis

Litigation will be more expensive, for no discernable advantage

A litigation case before the EPLA court will at least be twice as expensive as litigation before the national courts of Germany, France or the Netherlands.

The European Commission writes in its FUTURE PATENT POLICY IN EUROPE, preliminary findings:

"EFPIA is one of the few stakeholders who point out that EPLA benefits might be overstated because the risks and costs have not been fully appreciated. If it is true, as statistics seem to suggest, that cost of litigation in a centralised court would be twice that of proceedings in France or Germany, and if most patents are in practice currently enforced in only one jurisdiction, then mandatory litigation in a centralised court will only increase costs without discernable advantage. EFPIA also has concerns about the quality of decisions similar to those of EGA."

The costs for litigation can found in the EPO Office impact assesment, annex 1 and annex 2. The EPO Office itself concludes that EPLA litigation will be less expensive, but can only reach this conclusion by adding up litigation in 3 countries. Since most patents are in practice currently enforced in only one jurisdiction, this is a nice example of playing with statistics.

EPLA will be good for those with deep pockets, the multinationals and patent trolls. For !SMEs, the situation will be worse. Already, litigation is often too expensive. More often they will not be able to enforce their patents. More often they will be forced to settle if accused of infringement.

And all this, without "discernable advantage".

Political vacuum

|“The Administrative Committee shall be composed of the representatives and alternate representatives of the Contracting States. Each Contracting State shall be entitled to appoint one representative and one alternate representative.”|

(EPLA Draft)

Like the European Patent Organisation (EPO), the European Patent Judiciary (EPJ) will not be led by someone who is politically accountable, who will not answer to a parliament. The EPO has 31 ministers who are all a little bit in charge, by way of proxy. The ministers (or state secretaries) may hardly know what is happening. The parliaments of the Contracting States will be even less informed. If the public would like to change something it would have to address 31 parliaments, which would have to influence 31 ministers. The political power is fragmented, creating a political vacuum. From a democratical point of view, this governance model is a black box.

It can be maintained the European Union lacks legitimacy too, yet, the Union does have a Parliament that is gaining influence, does have a Commission which can be sent home, its Council consists of the ministers of the sovereign countries. This governance model is far to be preferred over the EPO / EPJ model, which lacks legitimacy.

Captive incrowd

A patent office sells rights, a product that doesn't them cost anything. In fact, the more easy they grant them, the better the business, the more happy the buyers. Such a situation calls for strong external checks and balances. The EPO governance model does not provide these. The patent incrowd is a captive incrowd, they share the same interests and beliefs. They do not represent the public at large.

Administrative puppy courts

Granting patents is an administrative process. The EPO's unit that sells the patents, the European Patent Office (EPO's Office), has its own Boards of Appeal. These Boards

Lord Justice Jacob said about the Boards:

|"The European Patent Office Boards of Appeal is a pretty damn silly system — they are judges and yet they are part of the European Patent Office and that stinks. They shouldn’t be part of the [Patent] Office,"|

Policy change, outside competence

The EPO Office's internal Boards of Appeal introduced software patents. The pervasive introduction of software into patent law is not a "technical" legal decision but a policy change definitively outside the competence of any court, requiring proper treatment as a policy change.

Independent national civil courts

There is no appeal possible against these Boards of Appeal decisions. Once the patent is granted, the patent holder can litigate against assumed infringers in civil cases. The proposed European Patent Court will decide these civil cases, which are currently handled by independent national courts and Supreme Courts – the highest form of administering justice. These judges handle civil cases where patent owners and assumed infringers meet, they see both sides of the coin. In these courts the policy changes introduced by the EPO's Office's Boards of Appeal have met resistance. This is the reason we do not see much software patent litigation in Europe.

European civil puppy court

The member states' representatives to the ECJ's Administrative Committee will often be the same representatives as the representatives to the EPO's Administrative Council. They come from the member states' executive and patent offices. Basically the same people will appoint the President and Vice-Presidents of the European Patent Office (EPO Office), the members of the internal EPO Office's Boards of Appeal and the judges of the European Patent Court. Members of the EPO Office's administrative Boards of Appeal and officials from patent offices will qualify. The judges can be re-appointed after 6 years, which makes them dependent.

The European Patent Court's judges will be appointed by an executive style, politically unaccountable organisation. Members of EPO Office's internal (the lowest form of administering justice) administrative (a different kind of law) Boards will qualify. Members of the European Patent Office's internal Boards of Appeal and members of national patent offices' Boards can be a judge at the European Patent Court at the same time! An unheard of mixture of executive and judiciary. An unheard of overconcentration of power.

Reservoir of software patents

The EPLA court's judges will be appointed by captive representatives that do not represent the public at large.

The policy changes introduced by the EPO Office's internal and not independent Boards of Appeal will be validated by the European Patent Court this way. The software patents the European Patent Office granted (outside its competence) will be made enforceable. The reservoir of software patents will be unleashed.

Executive taking over the judiciary

We are witnessing the executive taking over the judiciary. We have independent national courts and Supreme Courts for civil patent cases, but we will have a dependent European Patent Court.

U.S. style litigation

In the U.S., decades ago a central court was created. Brian Kahin, Cnet::

|Twenty-five years ago, Congress created a specialized court to hear all patent appeals. Although Congress did not change patent law, the idea was to make the judicial interpretation of patent law more consistent. Yet the new Court of Appeals for the Federal Circuit quickly became a champion for its specialty. It made patents easier to get, easier to enforce, more powerful and available for virtually anything, including software and business methods.|

Without a change of law, the landscape changed dramatically. And one stop litigation is profitable for the right holders. We will see U.S. style litigation in Europe. Europe is at the crossroads. We can go the same way as the U.S., or call it a narrow escape.

Damages

In the U.S. big software vendors demand changes in the way damages are awarded, since things clearly run out of hand. ZDnet:

|Emery Simon, chief counsel for the Business Software Alliance, said his organization's large member companies--including Microsoft, Apple Computer, Macromedia and Symantec--favor a system that would award damages "based on the proportional value of patented invention(s) alone, not on the cumulative value of all features included on a large product, which, for a computer, can be thousands and thousands of features."|

The fact Europe does not have much software patent litigation, and does not have European scale litigation, with its economy of scale profits, camouflages the damages problem. Europe has the excellent possibility to solve the problem before European scale litigation is introduced, before things run out of hand here as well.

In the U.S. the patent system has become a problem, many companies demand reform. We should not follow the U.S. We better watch the problems and the solutions that present themselves, and only act then.

Captive Working Party

When the drafts were ready the Working Party issued a declaration::

|"It believes that the drafts' detailed and comprehensive provisions for a unitary European court system with a decentralised court of first instance, a centralised appellate court and a Facultative Advisory Council offer an optimum solution for users of the European patent system."|

The "users of the European patent system" are those who acquire patents, and for them the drafts may "offer an optimum solution". May we call the Working Party that wrote the drafts captive? The users seem happy. Software companies like Microsoft and SAP are lobbying for EPLA. Since in the U.S. these companies want features which the EPLA does not have or undoes (damages reform, compulsory licenses), we may wonder whether they are mistaken about the nature of EPLA.

Compulsory licenses

EPLA does not mention compulsory licensing at all. In the U.S. big software vendors want compulsory licenses. Here a working party just throws it out without telling anyone about it. The Community patent proposal on the other hand has extensive provisions on compulsory licenses. See also eBay and z4 Technologies v. Microsoft.

Retroactive liability

Retroactive liability opens the possibility for legal extortion. It will be profitable to apply for broad, vague and trivial patents, and then send out notices after some years. Since going to court will often be too expensive, !SMEs will have to pay. See art 67 Agreement.

Languages

People should have the right to defend themselves in their own language. Already Small and Medium sized Enterprises go broke over litigation costs.

Using the language(s) used at the European Patent Office would be Western Europe centered.


Relation with European Union

The EPO is not a Community organisation, the EPLA Patent Court will not be a Community organisation.

The Commission stated that after the adoption of the "Council regulation on jurisdiction and recognition and enforcement in civil and commercial matters" ((EC) No 44/2001, of 22 December 2000), Members States do not have the power to sign the EPLA.

Accession to the EPLA will not solve the problems. As a consequence of art 32 EPLA, accession to the EPLA will (partially) imply accession to the EPC, will (partially) make the EPC Community law. As a result subsequent changes of the European Patent Convention will also be Community law. Most problematic aspects of accession to the EPC will be problematic aspects of accession to the EPLA.

The EPC can not only be changed by a diplomatic conference, the European Patent Organisation’s Administrative Council can change the “Implementing Regulations”, as well as Parts II to VIII and Part X of the European Patent Convention, thereby taking on the role of legislator. The constituting treaties of the European Community, with its precise rules on making Community laws, will be bypassed. The European Parliament will be bypassed. We will have Community law without democratic control. Accession to the EPC undermines the European Community’s constituting treaties.

Accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained, see http://wiki.ffii.org/EuAccEplaEn

See also http://www.ffii.org/~ante/compat/FFII.org_EC-accession-EPC.pdf

Two European Courts

To make it all work, the European Community probably has to accede to the European Patent Convention as well. Commissionar McCreevy said about such an accession: "The Community would accede to the EPC which would have as a consequence that the latter becomes Community law." Ultimately the ECJ decides on Community Law. Of course it will be unacceptable that a non-Community institution will ultimately decide on Community law. This will reduce the EPLA court to a lower court...

If we take the Community serious, it is impossible to have a non-Community European patent court.

The EPLA court is overexpensive on its own. How expensive will it be to have two European courts to decide patent matters?

European Court of Justice

The European Union has a proposal for a European scale patent court too, the Community patent related Community Patent Court, which would be part of the European Court of Justice (ECJ). Art 2 and 3 describe the way judges will be appointed. This would lead to a much higher quality, a much higher impartiality. ECJ judges can not hold another office (art4).

The European Union already has a Court, the highly prestigious European Court of Justice (ECJ). If we want a European Patent Court, let the ECJ handle patent cases. And do keep the members of the EPO's Office puppet court out.


Attachments

Draft Agreement on the establishment of a European patent litigation system

http://www.european-patent-office.org/epo/epla/pdf/agreement_draft.pdf

|Working Party on Litigation 16.2.2004 Draft Agreement on the establishment of a European patent litigation system|

|Preamble THE CONTRACTING STATES, CONSIDERING that co-operation among the countries of Europe in the field of patents renders a significant contribution to the legal and economic integration of Europe, WISHING to promote the uniform application and interpretation of European patent law, to improve the enforcement of European patents|

including software patents

|Art. 5 Judicial independence. The European Patent Court, its judges and the Registrar shall enjoy judicial independence.|

Judges can be reappointed (art 17.3). May serve at the same time at EPO Boards of Appeal (Statute art 2 and 6). This does not guarantee independence.

|CHAPTER III ADMINISTRATIVE COMMITTEE |

|Article 13 Composition The Administrative Committee shall be composed of the representatives and alternate representatives of the Contracting States. Each Contracting State shall be entitled to appoint one representative and one alternate representative. |

See introduction for the deficiencies of this governance model.

| (3) The Administrative Committee shall, in accordance with the Statute, appoint, re-appoint or remove from office, the judges and the Registrar of the European Patent Court. |

With a simple majority of the Contracting States represented and voting judges can be appointed, re-appointed or removed.

|Article 19 The budget of the European Patent Judiciary shall be financed from its own resources and, where necessary, from contributions made by the Contracting States. Regional Divisions shall be financed as laid down in Article 21a. Article 20 Own resources of the European Patent Judiciary|

A court is not a company. Courts have to be financed by public means to ensure integrity.

|Article 32 Substantive patent law to be applied by the European Patent Court For the purposes of litigation under this Agreement, European patents shall be subject to: (a) the provisions of this chapter, (b) those provisions of the European Patent Convention which apply to every European patent and which are consequently deemed to be provisions of this Agreement, and (c) those provisions of national law which have been enacted by the Contracting States to implement Article 65, Article 67, paragraphs 2 and 3, and Article 70, paragraphs 3 and 4, of the European Patent Convention.|

( FYI: Art. 65 Translation of the specification of the European patent Art. 67 Rights conferred by a European patent application after publication Art. 70 Authentic text of a European patent application or European patent )

No mention at all of compulsory licenses. There will be European scale infringement cases, but no possibility of European scale compulsory licenses at the request of a private party. This compares very unfavorably with the Community patent.

32 (b) Accession to the EPLA will (partially) imply accession to the EPC, will (partially) make the EPC Community law. See art 89.

|43 (5) Subject to the national law relating either to claims for damages caused by negligence or lack of good faith on the part of the proprietor of the patent, or to unjust enrichment, the retroactive effect of the revocation of a European patent under paragraph 3 shall not affect any final decision on infringement enforced prior to the revocation of the patent. |

This article clearly shows patent cases are a lottery. Here society says: if it goes wrong do not come knocking at our door.

Sidenote: See Art. 33(2) CPC 1989, http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:41989A0695(01):EN:HTML

(longer, with repayment clause)

|Article 64 Damages (1) The European Patent Court may order the party who knowingly, or with reasonable grounds to know, infringes the European patent, to pay the injured party damages adequate to compensate for the injury suffered. |

“or with reasonable grounds to know,” has to be taken out. See art 67.

|(2) The European Patent Court shall have the same power in respect of a party who caused or tolerated such infringement, on the basis of his relationship with the party infringing the European patent, while it was in his power to stop it. |

Patent cases are lotteries. It is most often impossible to know in advance whether a patent is violated, art 43 even shows that final decisions may differ. Why then would a relation be held responsible? “Tolerated” and “in his power to stop it” are very broad. Normally, relations like to have an exemption from liability. Such an exemption may be seen as an indication the relation knew there may have been an issue and may on the contrary increase liability. This will have a disruptive effect.

It is impossible to write software without violating patents. Do we have to stop all our relations from writing and using software?

|(3) Regarding the assessment and awarding of damages, the injured party shall, as far as possible, be restored to the position he would have been in if no infringement had taken place, and the party infringing the European patent shall not benefit from the infringement. (4) Damages shall not be punitive.|

| Article 65 Kinds of damages (1) Damages shall compensate for any loss suffered by the injured party because of any infringing act. They shall include, without necessarily being confined to, (a) the profits the injured party would have made if no such act had taken place, or (b) any profits actually made or likely to have been made by the party infringing the European patent. (2) The European Patent Court may order the party infringing the European patent to lay open his books to the injured party or to such expert as the Court may designate. (3) If it is impossible or disproportionately difficult or costly to establish the real extent of any damages under paragraph 1, the European Patent Court may freely determine the amount of damages to be awarded, which shall in any event exceed the amount of the customary licence fee. (4) In awarding damages, the European Patent Court may also order the party infringing the European patent to perform, or refrain from, certain acts. |

(1) Implies you can take all products the owner could have sold and take that as the damage. But that is not what the “invention” itself is worth. First, you have to pay patent owner A for all the products he could have sold, then patent owner B for all the products he could have sold, then C and D, etc. There is no relation with the worth of the inventions itself, which are most often trivial, at best often only sequential additions. Why pay the full price to all that have a little stake in the product? One does not pay the full price of a car if one only buys a mirror, not? It is this system that makes the damages awarded in patent cases extreme and insane. This system may work in an one product - one patent situation, but not in an one product - many patents situation, which is the case in the software field (and in any field with sequential development).

In the U.S, software companies are against such a system. http://news.zdnet.com/2100-3513_22-5867383.html

This damages problem is a problem in all patent litigation systems, not just EPLA. But creating European scale litigation makes it much worse.

The damages problem has to be solved before any European scale litigation is made possible.

(3) “which shall in any event exceed the amount of the customary licence fee” Patents are exclusive rights, the owner can ask whatever he likes. An obligation that the damages must exceed the customary license fee may have an inflatory effect.

|Article 66 Indemnification of a party The European Patent Court may order a party, at whose request measures ordered by the Court were enforced, to provide the other party wrongfully enjoined or restrained with adequate compensation for the injury suffered as a result of such enforcement, and to pay his expenses. Article 65 shall apply mutatis mutandis.|

|Article 67 Limitation of right to claim damages (1) The right to claim damages shall expire five years from the date on which the injured person became, or had reasonable grounds to become, aware of the infringing act. |

Retroactive liability. A patent holder will claim the assumed infringer had reasonable grounds to become aware. Retroactive liability opens the possibility for legal extortion. It will be profitable to apply for broad, vague and trivial patents, and then send out notices after some years. Since going to court will often be too expensive, SMEs will have to pay. “or had reasonable grounds to become” has to be taken out.

|(2) Notwithstanding paragraph 1, the right to claim damages shall expire five years after proceedings for damages were terminated without a decision or a settlement. (3) The parties may agree in writing to another period of limitation. |

|Article 84 TRANSITIONAL AND FINAL PROVISIONS TRANSITIONAL PROVISIONS Scope |

|This Agreement shall apply to (a) any European patent which at the time of its entry into force was already effective in one or more Contracting States, or was granted for and became effective in one or more Contracting States after that date|

The software patents already granted by the EPO Office. With an influx of EPO Office !BoA members, these patents will become enforceable.

|(b) any European patent application pending at the time of its entry into force, or filed on or after that date, unless proceedings on such European patent or patent application were initiated before a national court or other competent authority of a Contracting State prior to that date. Article 85 Jurisdiction of national courts during a transitional period|

Side note:

|If the EPLA is to be open to accession by the European Community, it is not sufficient merely to add a clause in Article 89. The possibility of accession by the EC has further implications. Appropriate solutions must be found for the definition of the contracting parties to the EPLA, the composition of the Administrative Committee and delegates' voting rights, and for the provisions on financing the European Patent Judiciary. In-depth study may reveal further issues. Provision necessary because of the inclusion in the EPLA of the rules governing the FAC. |

There are major issues with accession, not only when it comes to the EPLA text.

|Article 89 Accession (1) This Agreement shall be open to accession by any Contracting State to the European Patent Convention to the European Community. |

As a consequence of art 32, accession to the EPLA will (partially) imply accession to the EPC, will (partially) make the EPC Community law. See above, Analysis, Relation with EU.

|Article 93 Revision (1) This Agreement may be revised by a Conference of the Contracting States. (2) The Conference shall be prepared and convened by the Administrative Committee. The Conference shall not be validly constituted unless at least three- quarters of the Contracting States are represented at it. Adoption of the revised text shall require a majority of three-quarters of the Contracting States represented and voting at the Conference. |

three-quarters for revision


Draft Statute of the European Patent Court

Abbreviations:

|Working Party on Litigation 16.2.2004|

|CHAPTER I JUDGES Article 2 Requirements for office Any person who has a good command of at least one of the official languages of the European Patent Office may be appointed as a judge of the European Patent Court, provided that he has sufficient experience of patent law and (a) has been or is a judge in one of the Contracting States to the European Patent Convention, (b) has been or is a member of a Board of appeal of the European Patent Office or a national patent office of one of the Contracting States to the European Patent Convention, or (c) has other equivalent experience enabling him to act as a judge of the European Patent Court.|

|DK: opposes that a person be member of a !BoA and judge of the European Patent Court at the same time (see also Art. 6(1) Draft Statute)|

The European Patent Court will decide civil cases, now decided by national courts. It does make sense to appoint judges from the member states.

Members of a Board of appeal of the European Patent Office or a national patent office on the other hand come from the administration. The Boards of Appeal have never been independent. Administrative law is a different kind of law.

Judges of the highest European civil patent court can also be members of a Board of appeal of the European Patent Office or a national patent office, which are internal and not independent. An unheard of mixture of executive and judiciary.

This compares unfavourably to the Community patent related CPC, which would be a part of the ECJ. ECJ judges can not hold another office.

“Article 4 The Judges may not hold any political or administrative office. They may not engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the Council. When taking up their duties, they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. Any doubt on this point shall be settled by decision of the Court.”

http://europa.eu.int/cj/hu/instit/txtdocfr/txtsenvigueur/statut.pdf

!BoA members and patent office officials have been engaged in enlarging the scope of patent law, which was outside their competence. There are political reasons not to appoint even former !BoA members, see the introduction for this.

See also article 6.

|Article 3 Legally and technically qualified judges The European Patent Court shall comprise both legally and technically qualified judges.|

The Commission proposal for a Community Patent Court mentioned in an initial draft technically qualified judges as well.

http://register.consilium.eu.int/pdf/en/02/st13/13408en2.pdf (point 12)

After Council Working Party discussion this idea was set aside. The Community Patent Court proposal now mentions (art 7) technical experts without voting right. The EPLA statute draft is outdated, not in line with Council vision.

http://register.consilium.eu.int/pdf/en/04/st05/st05189.en04.pdf

|Article 4 Appointment (1) Judges shall be appointed by the Administrative Committee as legally or technically qualified judges for a term of six years, on a proposal from the Common Presidium. They may be re-appointed.|

Re-appointable judges are not independent. Basically, the same people will control the European Patent Office, will appoint the Boards of Appeal members and the European Patent Court judges. An enormous concentration of power, while the governance model is a political vacuum.

The way judges are appointed compares unfavourable with the CPC.

“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.

http://register.consilium.eu.int/pdf/en/04/st05/st05189.en04.pdf

| (2) The decision appointing a judge shall state the court for which a legally qualified judge is appointed and the fields of technology for which a technically qualified judge is appointed.|

Speaking about the CPC, Sir Robin Jacob critisised the idea of technically qualified judges, for different fields of technology:

“Judge Jacob claimed the EC showed a limited understanding of technology, in its suggestion of "technically qualified judges". "The European Commission's proposal would have been a total disaster. They had an idea that there would be technical judges, and they said 'there are seven fields of technology'. Only somebody with an arts degree could say that," he said” http://news.zdnet.co.uk/business/legal/0,39020651,39247521,00.htm

As said above, after Council Working Party discussion this idea was set aside for the CPC, it still lives on for the European Patent Court.

| Article 6 Incompatibility of other functions (1) Apart from being members of other courts or Boards of appeal of the European Patent Office or national patent offices, judges of the European Patent Court shall not pursue any gainful occupation unless authorised by the Executive Committee. Nor shall they occupy any political or administrative office.|

See art 2 for this.

| Article 10 Impartiality (1) A judge or assessor may not take part in the hearing of any case in which he has previously (a) taken part as adviser, (b) acted for one of the parties, or (c) been called upon to pronounce as a member of a court, tribunal or Board of appeal, of a commission of inquiry or in any other capacity. (2) If, for some special reason, a judge or assessor considers that he should not take part in the examination of a particular case, he shall inform the President of his Court accordingly. If, for some special reason, the President of a Court considers that a judge or assessor should not sit on a particular case, he shall notify him accordingly (3) Any party to the proceedings may object to a judge or assessor for any of the reasons mentioned in paragraph 1 or if he is suspected with good reason of partiality. A party may not object to the composition of a panel on the grounds of either the nationality of a judge or assessor or the absence from the panel of a judge or assessor of the nationality of that party. (4) Any decision under this Article shall be taken, in accordance with the Rules of Procedure, by a panel of the Court without the participation of the judge or assessor concerned.|

!BoA members and patent office officials have been engaged in enlarging the scope of patent law, which was outside their competence.

|Article 32 Language of the proceedings (1) The language of the proceedings shall be: (a) in proceedings before the Central Division of the Court of First Instance, the language of the proceedings before the European Patent Office|

The text is unclear about which proceedings. This shows how European Patent Office centered the draft is. The court will handle civil cases. There is no direct relation with the European Patent Office.

The summary has: “before the Central Division of the Court of First Instance, the language of the proceedings will be the language of the European patent or the European patent application”

The language advantage is on the side of the patent applicant.

It would be a good principle if people have the right to defend themselves in their own language. Already now Small and Medium sized companies go broke over litigation costs.

Using the language used at the European Patent Office would be Western-Europe centered.

|ES, PT: general reservation on language regime|

|Article 33 Language of decisions Decisions of the European Patent Court shall be drawn up in the language of the proceedings.|

People will not even be able to read the decision in their own language.

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