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Squabbling EU heads force Council to split patent court in 3

Pouting politicians dig their heels in on unified system

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The UK, France and Germany have removed the last obstacle to the formation of a unified European patent system by divvying up the court between them.

The three European powerhouses have been holding up the end of a process that's been going on for decades to try to bring all of Europe's patent laws and disputes under one system so companies only have to get one patent and only have to litigate once.

But European Council President Herman Van Rompuy said today that EU leaders had reached a decision at a council meeting.

"After 30 years of discussions on a European patent we reached an agreement on the last outstanding issue, the seat of the Unified Patent Court," he said in a canned statement shortly after announcing the agreement on Twitter.

The squabbling chiefs of state came to a compromise by breaking the central court down into three parts, one for each country, which sort of belies the word "central".

Paris gets the seat of the court, which will be called the Court of First Instance of the Unified Patent Court, and it will get the president of that court's office as well.

The Council then claimed that "given the highly specialised nature of patent litigation and the need to maintain high quality standards", it thought it might have two "thematic clusters" as well. In other words, London will hear cases on chemistry including pharmaceuticals and life sciences, while Munich gets mechanical engineering.

"The agreement reached today on the Unitary Patent will lead to considerably reduced costs for SMEs and give a boost to innovation, by providing an affordable, high quality patent in Europe, with a single specialised jurisdiction," the Council's findings said.

The European Commission has described a single patent system as one of the most achievable and immediate steps the EU can take to encourage innovation and reduce costs for businesses, but separate states have been unsure whether the system will be all good news.

Various British bodies have voiced their concerns about the system, including a committee of MPs which found that the new court would be "prohibitively expensive" for small UK businesses to use.

As recently as 20 June, the Chartered Institute of Patent Attorneys (CIPA) in the UK was claiming that not only the UK but Sweden, Finland, Poland and Germany were concerned about the proposals as they stood. CIPA said then that the current draft of proposals needed amendment if they were going to benefit business in the UK and Europe.

While companies will only have to buy one patent and only have to litigate once, there will be big costs for small businesses who will have to journey to wherever the appropriate court is. There is also some lack of certainty on what everything is going to cost in the new system and which bits of which laws will be held onto.

For example, Germany has a so-called "bifurcated system" for trying patent cases, where it decides on the validity and the infringement in two different courts, but the UK doesn't do that. Naturally then, the UK wanted the unified system to be like its own and Germany wanted the same.

CIPA said in a statement that it was still unclear whether the new system would allow bifurcation or not, but the fact that lawsuits wouldn't be able to go to the Court of Justice was good news.

Critics of the system had been concerned that appeals would go to the Court of Justice, which is already overworked and has no experience of intellectual property, but today's agreement scraps that idea.

Chris Mercer, president of CIPA told The Register the agreement was "not as good as it should be and not as bad as it could be either".

"Three courts - that has its good bits and its bad bits," he said, "overall we would have preferred one court."

However, he added that the deal now was much better for the UK and Europe than it had been. ®

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