The draft European Patent Litigation Agreement (EPLA), or formally the Draft Agreement on the establishment of a European patent litigation system, is a proposed patent law agreement aimed at creating an "optional protocol to the European Patent Convention (EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court" [1]. In 1999, a Working Party on Litigation was set up by member states of the European Patent Organisation to propose an optional agreement on the creation of such a central judicial system. At its fifth meeting on 19 and 20 November 2003, the Working Party came up with a draft agreement and a draft statute for the European Patent Court. If the agreement enters into force, this would roughly create a European equivalent to the United States Court of Appeals for the Federal Circuit (CAFC).

Currently, once granted, a European patent is enforceable in a country-by-country basis ("Any infringement of a European patent shall be dealt with by national law." Art. 64(3) EPC). In addition, once the 9-month opposition period is terminated, third parties wanting to invalidate a European patent must institute revocation proceedings in each country where the patent is in force.

This situation leads to high litigation and revocation costs for patent holders and third parties, to legal uncertainty (a European patent may be revoked in United Kingdom while upheld in Germany), cross-border injunctions and forum shopping (selecting the most favorable national court to institute litigation). This reduces the incentives to apply for a European patent and, many argues, the situation is a burden on the competitiveness of the European economy, compared to the situation in the United States (see also EU's Lisbon Strategy).

Legal provisions

The 2003 draft agreement provides the creation of a "European Patent Judiciary (EPJ)", a financially autonomous organisation, comprising:

• a "European Patent Court" competent to decide on infringement relating to European patents and including a "European Patent Court of Appeal"; and
• an "Administrative Committee".

Competence problems

It is not clear yet whether the countries which are members of the European Union have the competence to institute such a system or whether the competence is exclusively in the hands of the European Union (see EC Regulation 44/2001 [2]).

France may also have constitutional problems to sign and ratify such a far-reaching agreement.

Trivia

The agreement was called "European Patent Litigation Protocol" (EPLP) before being renamed "European Patent Litigation Agreement" (EPLA) for reasons of international law [3].

See also

• Community Patent
• London Agreement
• Brussels and Lugano Conventions and Council Regulation 44/2001

External links

• Official draft agreement or here
• Official draft statute of the European Patent Court or here
• Declaration of the Working Party on Litigation, here or here
• EPLA summary on the European Patent Office web site
• Art. 64(3) EPC
• Mandate of the working party on litigation