At present no EU patent exists. There is a European Patent granted by the European Patent Office but such a patent is only a bundle of identical national patents conferring national protection (see Order in Case T-295/05 Document Security Systems, paragraph 53) (For an example - which concerns the refusal to grant a European Patent, see here). Disputes on the EPO patents are decided by national courts with the risk of multiple litigation. Consequently, the Council is working on a draft agreement to create a new European-wide jurisdiction. The agreement will be between the States wishing to ratify it and the EU itself.
The draft agreement aims to achieve the following :
- to establish a new jurisdictional system, to be named "European Union Patent Court", composed of a court of first instance - comprising a central division as well as local and/or regional divisions - and a court of appeal;
− to lay down that the new patents courts shall have exclusive competence in respect of actions for infringement of patents or for a declaration of non-infringement, actions or counterclaims for revocation of patents, actions for damages, actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the patent and other actions concerning Community patents and related to licences or supplementary protection certificates;
− to provide that the jurisdiction of the new patents courts shall cover both the European patents and the Community patents (when created);
- to provide that decisions given by the new patents court of appeal may be subject to further appeal before the Court of Justice of the European Communities on points of law only ("cassation") in cases to be defined in the Statute.
The Council has recently released a new draft of of the Agreement.
Also, the Council is examining whether the EU has competence to conclude the draft Agreement. This document shows that the issue of a possible request to the Court of Justice for an opinion under Article 300 §6 EC is being discussed. Unfortunately, the actual assessment of the compatibility of the draft Agreement with the EU legal order is not publicly available and has been edited out. The document does state however:
"Up to now, the Commission has not withdrawn or amended its proposals for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance (document of the Council 5189/04) and for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent (document of the Council 5190/04), [...]. Such proposals seem incompatible with the draft Agreement."