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 AWAITING THE
COMMUNITY
PATENT
Pierre Véron
Véron & Associés
Paris
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 Earlier
this year, the European Council at last reached a political agreement on the
Community Patent. It may therefore be expect-ed that something like 30 years
after the Luxembourg Convention. the first Community
Patent will be registered. EU member states also agreed on a
court system for the resolution of disputes about the
Community Patent. But will the industry use the Community Patent rather than
the good old European one (to
say nothing of the national patent)'? When will all the legal and practical
hurdles on the way to the Community Patent Court be cleared (for instance.
the thorny issue of whether this Court will be able to decide over non-patent
law issues such as whether a licence agreement has been terminated. when this
is raised as a defence to an infringement action. And, if the Court has
jurisdiction, which body of conflict of law principles it will rely on to
decide which substantial law it will apply to such defence)? In the meantime,
and probably at least for the next 10 years. nation-al
courts will have to be used to settle disputes arising out of European
patents.
What are the positive sides of the French judicial
system in this respect? In a nutshell:
a very efficient tool for gathering evidence of infringement,
a reasonable time frame, affordable costs and a patent-friendly attitude.
Saisie-contrejuçon
(search and seizure order for proving infringement)
is a very powerful tool: it is so efficient-and-cheap that
both the drafters of the Community Patent regulation and the
drafters of the European Patent Litigation Agreement have adopt-ed it (to say
nothing of the Proposal for a Directive of the European Parliament and of the
Council on measures and procedures to ensure the enforcement of intellectual
property rights which would oblige EU member states to introduce this in
their statutory provision).
French
litigation remains one of the cheapest in Europe
(the reasons are: no discovery and no schedule of ad
valorem fees). The plaintiff's situation is still
enhanced by the current trend of the courts to
grant significant amounts for costs (the Court of Appeal
of Paris
grants up to €100.000 ($117,421) to the successful plain-tiff in heavy patent
cases).
As
to the timeli•ame, it is rather comparable to that of Germany when
the validity of the patent in suit is concerned.
Whether
French courts are patent friendly or not answered by the
statistics 1990-1999 period. An average of 180
patent cases were decided each year by the court of Paris in first instance
and the patentee prevailed in 55% of cases (in 23% of cases the patent was
found invalid and in 22% the patent was found valid but not infringed).
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