Work has started in earnest in the Council on a draft Agreement on the European Patent Judiciary. A revised Presidency working document dated May 14 2008 with a new version of the draft Agreement was released recently. (For a first draft, see here).
The idea of the draft Agreement is to set up a new patent court system in the EU with exclusive jurisdiction over claims of infringement, revocation, damages, prior use or invention as well as relating to licensing of European patents granted under the European Patent Convention or EC patents granted pursuant to a regulation still to be adopted and proposed in 2000 which is currently under discussion (the proposal being substantially revised in 2004).
Back in 2003 the Commission had made two proposals. One - COM(2003)827 final - was to confer on the Court of Justice formal jurisdiction concerning certain disputes over Community Patents, in particular those concerning alleged infringements of patents and challenges to the validity of patents. The second - COM(2003) 828 final- was to establish a Community Patent Court, whose seven judges would be appointed by the Council, to exercise the Court of Justice's jurisdiction on its behalf. That proposal also entailed establishing a specialized chamber within the Court of First Instance to hear appeals against the Community Patent Court's judgments. In exceptional cases, a decision of the Court of First Instance could be subject to review by the Court of Justice.
What is currently envisaged in the draft Agreement on the European Patent Judiciary is quite different. It aims to set up its own court of first instance, completely separate from the eponymous court in Luxembourg, with a central division somewhere and local or regional divisions too. A bit like Circuit courts. There will also be a separate court of appeal. Finally, there will be a limited right of review on points of law only by the Court of Justice (the one that already exists in Luxembourg).
An interesting aspect is the proposed rules on the languages of procedure. Basically, the language of procedure will be the language of the member State where the local or regional division is situated unless the parties agree on the use of the language in which the patent was granted.
We'll see how this progresses.