Erhvervs-, Vækst- og Eksportudvalget 2012-13
ERU Alm.del Bilag 79
Offentligt
COU CIL OFTHE EUROPEA U IO
Brussels, 14 ovember 2012
16222/12
PI 146COUR 74OTEfrom:to:No. prev. doc.:Subject:
PresidencyDelegations14750/12 PI 120 COUR 67Draft agreement on a Unified Patent Court and draft Statute- Consolidated text
Delegations will find in the Annex a revised version of the consolidated text of the above mentioneddraft agreement, which takes into account delegations’ comments.
Changes in relation to the previous version (14750/12) are underlined.
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DRAFT AGREEME T O A U IFIED PATE T COURT
THE KINGDOM OF BELGIUM,[enumeration of other Member States]…,
(1)
CONSIDERING that cooperation amongst the Member States of the European Union inthe field of patents contributes significantly to the integration process in Europe, in particularto the establishment of an internal market within the European Union characterised by the freemovement of goods and services and the creation of a system ensuring that competition inthe internal market is not distorted,
(2)
CONSIDERING that the fragmented market for patents and the significant variations betweennational court systems are detrimental for innovation, in particular for small and mediumsized enterprises which have difficulties to enforce their patents and to defend themselvesagainst unfounded claims and claims relating to patents which should be revoked,
(3)
CONSIDERING that the European Patent Convention ("EPC") which has been ratified by allMember States of the European Union provides for a single procedure for granting Europeanpatents by the European Patent Office,
(4)
CONSIDERING that by virtue of the Regulation of the European Parliament and of theCouncil of the European Union implementing enhanced cooperation in the area of the creationof unitary patent protection, patent proprietors can request unitary effect of their Europeanpatents so as to obtain unitary patent protection in the Member States of the European Unionparticipating in the enhanced cooperation,
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(5)
WISHING to improve the enforcement of patents and the defence against unfounded claimsand patents which should be revoked and to enhance legal certainty by setting up a UnifiedPatent Court for litigation relating to the infringement and validity of patents,
(6)
CONSIDERING that the Unified Patent Court should be devised to ensure expeditious andhigh quality decisions, striking a fair balance between the interests of right holders and otherparties and taking into account the need for proportionality and flexibility,
(7)
CONSIDERING that the Unified Patent Court should be a court common to the ContractingMember States and thus part of their judicial system, with exclusive competence in respect ofEuropean patents with unitary effect and European patents granted for one or moreContracting Member States,
(8)
CONSIDERING that the Court of Justice of the European Union is to ensure the uniformityof the Union legal order and the primacy of European Union law,
(9)
RECALLING the obligations of the Contracting Member States under the Treaty onEuropean Union (TEU) and the Treaty on the Functioning of the European Union (TFEU),including the obligation of sincere cooperation as set out in Article 4(3) TEU andthe obligation to ensure through the Unified Patent Court the full application of, and respectfor, Union law in their respective territories and the judicial protection of an individual’srights under that law,
(10) CONSIDERING that, as any national court, the Unified Patent Court must respect and applyUnion law and, in collaboration with the Court of Justice of the European Union as guardianof Union law, ensure its correct application and uniform interpretation; the Unified PatentCourt must in particular cooperate with the Court of Justice of the European Unionin properly interpreting Union law by relying on the latter's case law and by requestingpreliminary rulings in accordance with Article 267 TFEU,(11) CONSIDERING that the Contracting Member States should, in line with the case law ofthe Court of Justice of the European Union on non-contractual liability, be liable for damagescaused by infringements of Union law by the Unified Patent Court, including the failure torequest preliminary rulings from the Court of Justice of the European Union,
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(12) CONSIDERING that infringements of Union law by the Unified Patent Court, includingthe failure to request preliminary rulings from the Court of Justice of the European Union, aredirectly attributable to the Contracting Member States and infringement proceedings cantherefore be brought under Article 258, 259 and 260 TFEU against any Contracting MemberState to ensure the respect of the primacy and proper application of Union law,
(13) RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter ofFundamental Rights of the European Union, the general principles of Union law as developedby the Court of Justice of the European Union, and in particular the right to an effectiveremedy before a tribunal and a fair and public hearing within a reasonable time byan independent and impartial tribunal, the case law of the Court of Justice of the EuropeanUnion and secondary Union law,
(14) CONSIDERING that this Agreement shall be open to accession by any Member State ofthe European Union; Member States which have decided not to participate in the enhancedcooperation in the area of the creation of unitary patent protection may participate inthis Agreement in respect of European patents granted for their respective territory,
(15) CONSIDERING that this Agreement shall enter into force on 1 January 2014 or on the firstday of the fourth month of the 13th deposit, provided that the Contracting Member States thatwill have deposited their instruments of ratification or accession include the three States inwhich the highest number of European patents was in force in the year preceding the year inwhich the signature of the Agreement takes place, or on the first day of the fourth month afterthe date of entry into force of the amendments to Regulation (EC) 44/20011concerning itsrelationship with this Agreement, whichever is the latest.
HAVE AGREED AS FOLLOWS:
1
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction andthe recognition and enforcement of judgments in civil and commercial matters,OJEU L 12, 16.1.2001, p. 1), including any subsequent amendments.LK/loDG G 3B4
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PART I – GE ERAL A D I STITUTIO AL PROVISIO S
CHAPTER I – GE ERAL PROVISIO S
Article 1Unified Patent CourtA Unified Patent Court for the settlement of disputes relating to European patents and Europeanpatents with unitary effect is hereby established.
The Unified Patent Court shall be a court common to the Contracting Member States and thussubject to the same obligations under Union law as any national court of the Contracting MemberStates.Article 2DefinitionsFor the purposes of this Agreement:(1)"Court" means the Unified Patent Court created by this Agreement.
(2)
"Member State" means a Member State of the European Union.
(3)
"Contracting Member State" means a Member State party to this Agreement.
(4)
"EPC" means the Convention on the Grant of European Patents of 5 October 1973, includingany subsequent amendments.
(5)
"European patent" means a patent granted under the provisions of the EPC, which does notbenefit from unitary effect by virtue of the Regulation of the European Parliament and of theCouncil of the European Union implementing enhanced cooperation in the area of the creationof unitary patent protection.
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(6)
"European patent with unitary effect" means a patent granted under the provisions of the EPCwhich benefits from unitary effect by virtue of the Regulation of the European Parliament andof the Council of the European Union implementing enhanced cooperation in the area ofthe creation of unitary patent protection.
(7)
"Patent" means a European patent and/or a European patent with unitary effect.
(8)
Deleted.
(9)
"Supplementary protection certificate" means a supplementary protection certificate grantedunder Regulation (EC) No 469/20092or under Regulation (EC) No 1610/963.
(10) "Statute" means the Statute of the Court as set out in Annex I, which shall be an integral partof this Agreement.
(11) "Rules of Procedure" means the Rules of Procedure of the Court, as established in accordancewith Article 22.
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Regulation (EC) No 469/2009 of 6 May 2009 concerning the supplementary protectioncertificate for medicinal products, (OJEU L 152, 16.6.2009, p.1) including any subsequentamendments.Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996concerning the creation of a supplementary certificate for plant protection products, (OJEU L198, 8.8.1996, p.30) including any subsequent amendments.LK/loDG G 3B6
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Article 3Scope of application
This Agreement shall apply to any:
(a)(b)(c)
European patent with unitary effect;supplementary protection certificate issued for a product protected by a patent;European patent which has not yet lapsed at the date of entry into force of this Agreement orwas granted after that date, without prejudice to Article 58; and
(d)
European patent application which is pending at the date of entry into force of this Agreementor which is filed after that date, without prejudice to Article 58.
Article 3aLegal status
(1)
The Court shall have legal personality in each Contracting Member State and shall enjoythe most extensive legal capacity accorded to legal persons under the national law of thatState.
(2)
Deleted.
(3)
The Court shall be represented by the President of the Court of Appeal who shall be elected inaccordance with the Statute.
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Article 3bLiability
(1)
The contractual liability of the Court shall be governed by the law applicable to the contract inquestion in accordance with Regulation. (EC) No. 593/20084(Rome I), where applicable, orunder the law of the Member State of the court seized.
(2)
The non-contractual liability of the Court in respect of any damage caused by it or its staff inthe performance of their duties, to the extent that it is not a civil and commercial matter withinthe meaning of Regulation (EC) No. 864/20075(Rome II), shall be governed by the law of theContracting Member State in which the damage occurred. This provision is without prejudiceto the application of Article 14c.
(3)
The court with jurisdiction to settle disputes under paragraph 2 shall be a court of theContracting Member State in which the damage occurred.
CHAPTER II – I STITUTIO AL PROVISIO S
Article 4The Court
(1)
The Court shall comprise a Court of First Instance, a Court of Appeal and a Registry.
(2)
The Court shall perform the functions assigned to it by this Agreement.
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Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008on the law applicable to contractual obligations (Rome I) (OJEU L 177, 4.7.2008, p. 6)including any subsequent amendments.Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007on the law applicable to non-contractual obligations (Rome II) (OJEU) L 199, 31.7.2007, p.40) including any subsequent amendments.LK/loDG G 3B8
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Article 5The Court of First Instance
(1)
The Court of First Instance shall comprise a central division as well as local and regionaldivisions.
(1a) The central division shall have its seat in Paris, with sections in London and Munich. Thecases before the central division shall be distributed in accordance with Annex II, which shallform an integral part of this Agreement.
(2)
A local division shall be set up in a Contracting Member State upon its request in accordancewith the Statute. A Contracting Member State hosting a local division shall designate its seat.
(3)
An additional local division shall be set up in a Contracting Member State upon its request forevery one hundred patent cases per calendar year that have been commenced in thatContracting Member State during three successive years prior to or subsequent to the date ofentry into force of this Agreement. The number of local divisions in one Contracting MemberState shall not exceed four.
(4)
Moved partially to paragraph 2 above and to Art 19(1).
(5)
A regional division shall be set up for two or more Contracting Member States, upon theirrequest in accordance with the Statute. Such Contracting Member States shall designate theseat of the division concerned. The regional division may hear cases in multiple locations.
Article 6Composition of the panels of the Court of First Instance
(1)
Any panel of the Court of First Instance shall have a multinational composition. Withoutprejudice to paragraph 5 of this Article and to Article 15a(2)(a), it shall sit in a composition ofthree judges.
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(2)
Deleted.
(2a) Any panel of a local division in a Contracting Member State where, during a period of threesuccessive years prior or subsequent to the entry into force of this Agreement, less than fiftypatent cases per calendar year on average have been commenced shall sit in a composition ofone legally qualified judge who is a national of the Contracting Member State hosting thelocal division concerned and two legally qualified judges who are not nationals of theContracting Member State concerned and are allocated from the Pool of Judges in accordancewith Article 13(3) on a case by case basis.
(3)
Notwithstanding paragraph 2a, any panel of a local division in a Contracting Member Statewhere, during a period of three successive years prior or subsequent to the entry into force ofthis Agreement, fifty or more patent cases per calendar year on average have beencommenced, shall sit in a composition of two legally qualified judges who are nationals ofthe Contracting Member State hosting the local division concerned and one legally qualifiedjudge who is not a national of the Contracting Member State concerned allocated fromthe Pool of Judges in accordance with Article 13(3). Such third judge shall serve at the localdivision on a long term basis, where this is necessary for the efficient functioning of divisionswith a high work load.
(4)
Any panel of a regional division shall sit in a composition of two legally qualified judgeschosen from a regional list of judges, who shall be nationals of the Contracting Member Statesconcerned, and one legally qualified judge who shall not be a national of the ContractingMember States concerned and who shall be allocated from the Pool of Judges in accordancewith Article 13(3).
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(5)
Upon request by one of the parties, any panel of a local or regional division shall requestthe President of the Court of First Instance to allocate from the Pool of Judges in accordancewith Article 13(3) an additional technically qualified judge with qualifications and experiencein the field of technology concerned. Moreover, any panel of a local or regional division may,after having heard the parties, submit such request on its own initiative, where it deems thisappropriate.
In cases where such a technically qualified judge is allocated, no further technically qualifiedjudge may be allocated under Article 15a(2)(a).
(5a) Merged with paragraph 6 below
(6)
Any panel of the central division shall sit in a composition of two legally qualified judges whoare nationals of different Contracting Member States and one technically qualified judgeallocated from the Pool of Judges in accordance with Article 13(3) with qualifications andexperience in the field of technology concerned. However, any panel of the central divisiondealing with actions under Article 15(1)(g) shall sit in a composition of three legally qualifiedjudges who are nationals of different Contracting Member States.
(7)
Notwithstanding paragraphs 1 - 6 and in accordance with the Rules of Procedure, parties mayagree to have their case heard by a single legally qualified judge.
(8)
Any panel of the Court of First Instance shall be chaired by a legally qualified judge.
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Article 7The Court of Appeal(1)Any panel of the Court of Appeal shall sit in a multinational composition of five judges. Itshall sit in a composition of three legally qualified judges who are nationals of differentContracting Member States and two technically qualified judges with qualifications andexperience in the field of technology concerned. Those technically qualified judges shall beassigned to the panel by the President of the Court of Appeal from the pool of judges inaccordance with Article 13.
(1a) Notwithstanding paragraph 1, a panel dealing with actions under Article 15(1)(g) shall sit in acomposition of three legally qualified judges who are nationals of different ContractingMember States.(2)Any panel of the Court of Appeal shall be chaired by a legally qualified judge.
(3)
The panels of the Court of Appeal shall be set up in accordance with the Statute.
(4)
The Court of Appeal shall have its seat in Luxembourg.
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Article 8The Registry(1)A Registry shall be set up at the seat of the Court of Appeal. It shall be managed bythe Registrar and perform the functions assigned to it in accordance with the Statute. Subjectto conditions set out in this Agreement and the Rules of Procedure, the Registry shall bepublic.(2)(3)Sub-registries shall be set up at all divisions of the Court of First Instance.The Registry shall keep records of all cases before the Court. Upon filing, the sub-registryconcerned shall notify every case to the Registry.(4)The Court shall appoint the Registrar in accordance with Article 17 of the Statute and laydown the rules governing the Registrar's service.
Article 9CommitteesAn Administrative Committee, a Budget Committee and an Advisory Committee shall be set up inorder to ensure the effective implementation and operation of this Agreement. They shall inparticular exercise the duties foreseen by this Agreement and the Statute.
Article 9a (ex-57)The Administrative Committee
(1)
The Administrative Committee shall be composed of one representative of each ContractingMember State. The European Commission shall be represented at the meetings ofthe Administrative Committee as observer.
(2)
Each Contracting Member State shall have one vote.
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(3)
The Administrative Committee shall adopt its decisions by a majority of three quarters ofthe Contracting Member States represented and voting, except where this Agreement orthe Statute provides otherwise.
(4)
The Administrative Committee shall adopt its rules of procedure.
(5)
The Administrative Committee shall elect a chairperson from among its members for a termof three years. That term shall be renewable.
Article 9b (ex-57a)The Budget Committee
(1)
The Budget Committee shall be composed of one representative of each Contracting MemberState.
(2)
Each Contracting Member State shall have one vote.
(3)
The Budget Committee shall take its decisions by a simple majority of the representatives ofthe Contracting Member States. However, a majority of three-quarters of the representativesof Contracting Member States shall be required for the adoption of the budget.
(3a) The Budget Committee shall adopt its rules of procedure.
(4)
The Budget Committee shall elect a chairperson from among its members for a term of threeyears. That term shall be renewable.
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Article 9c (ex-57b)The Advisory Committee
(1)
The Advisory Committee shall:
(a)
assist the Administrative Committee in the preparation of the appointment of judges ofthe Court;
(b)
make proposals to the Presidium referred to in Article 11 of the Statute on theguidelines for the training framework for judges referred to in Article 14; and
(c)
deliver opinions to the Administrative Committee concerning the requirements forqualifications referred to in Article 28(2).
(2)
The Advisory Committee shall comprise patent judges and practitioners in patent law andpatent litigation with the highest recognised competence. They shall be appointed, inaccordance with the procedure laid down in the Statute, for a term of six years. That termshall be renewable.
(3)
The composition of the Advisory Committee shall ensure a broad range of relevant expertiseand the representation of each of the Contracting Member States. The members ofthe Advisory Committee shall be completely independent in the performance of their dutiesand shall not be bound by any instructions.
(3a) The Advisory Committee shall adopt its rules of procedure.
(4)
The Advisory Committee shall elect a chairperson from among its members for a term of threeyears. That term shall be renewable.
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CHAPTER III – JUDGES OF THE COURT
Article 10Eligibility criteria for the appointment of judges
(1)
The Court shall comprise both legally qualified judges and technically qualified judges.Judges shall ensure the highest standards of competence and shall have proven experience inthe field of patent litigation.
(2)
Legally qualified judges shall possess the qualifications required for appointment to judicialoffices in a Contracting Member State.
(3)
Technically qualified judges shall have a university degree and proven expertise in a field oftechnology. They shall also have proven knowledge of civil law and procedure relevant inpatent litigation.Article 11Appointment procedure
(1)
The Advisory Committee shall establish a list of the most suitable candidates to be appointedas judges of the Court, in accordance with the Statute.
(2)
On the basis of that list, the Administrative Committee shall appoint the judges of the Courtacting by common accord.
(3)
The implementing provisions for the appointment of judges are set out in the Statute.
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Article 12Judicial independence and impartiality
(1)
The Court, its judges and the Registrar shall enjoy judicial independence. In the performanceof their duties, the judges shall not be bound by any instructions.
(2)
Legally qualified judges, as well as technically qualified judges who are full-time judges ofthe Court, may not engage in any other occupation, whether gainful or not, unless anexception is granted by the Administrative Committee.
(3)
Notwithstanding paragraph 2, the exercise of the office of judges shall not exclude theexercise of other judicial functions at national level.
(4)
The exercise of the office of technically qualified judges who are part-time judges ofthe Court shall not exclude the exercise of other functions provided there is no conflict ofinterest.
(5)
In case of a conflict of interest, the judge concerned shall not take part in proceedings. Rulesgoverning conflicts of interest are set out in the Statute.
Article 13Pool of Judges
(1)
A Pool of Judges shall be established in accordance with the Statute.
(2)
The Pool of Judges shall be composed of all legally qualified judges and technically qualifiedjudges from the Court of First Instance who are full-time or part-time judges of the Court. ThePool of Judges shall include at least one technically qualified judge per field of technologywith the relevant qualifications and experience. The technically qualified judges from the Poolof Judges shall also be available to the Court of Appeal.
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(3)
Where so provided by this Agreement or the Statute, the judges from the Pool of Judges shallbe allocated to the division concerned by the President of the Court of First Instance.The allocation of judges shall be based on their legal or technical expertise, linguistic skillsand relevant experience. The allocation of judges shall guarantee the same high quality ofwork and the same high level of legal and technical expertise in all panels of the Court of FirstInstance.
Article 14Training framework
(1)
A training framework for judges, the details of which are set out in the Statute, shall be set upin order to improve and increase available patent litigation expertise and to ensure a broadgeographic distribution of such specific knowledge and experience. The facilities for thatframework shall be situated in Budapest.
(2)
The training framework shall in particular focus on:
(a)
internships in national patent courts or divisions of the Court of First Instance hearinga substantial number of patent litigation cases;
(b)
improvement of linguistic skills;
(c)
technical aspects of patent law;
(d)
the dissemination of knowledge and experience in civil procedure for technicallyqualified judges;
(e)
the preparation of candidate-judges.
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(3)
The training framework shall provide for continuous training. Regular meetings shall beorganised between all judges of the Court in order to discuss developments in patent law andto ensure the consistency of the Court's case law.
CHAPTER IIIA – THE PRIMACY OF U IO LAW, LIABILITY A D RESPO SIBILITYOF THE CO TRACTI G MEMBER STATES
Article 14aPrimacy of and respect for Union law
The Court shall apply Union law in its entirety and shall respect its primacy.
Article 14bRequests for preliminary rulings
As a court common to the Contracting Member States and as part of their judicial system, the Courtshall cooperate with the Court of Justice of the European Union to ensure the correct applicationand uniform interpretation of Union law, as any national court, in accordance with Article267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be bindingon the Court.
Article 14cLiability for damage caused by infringements of Union law
(1)
The Contracting Member States are jointly and severally liable for damage resulting froman infringement of Union law by the Court of Appeal, in accordance with Union lawconcerning non-contractual liability of Member States for damage caused by their nationalcourts breaching Union law.
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(2)
An action for such damages shall be brought against the Contracting Member State where theclaimant has its residence or principal place of business or, in the absence of residence orprincipal place of business, place of business, before the competent authority of thatContracting Member State. Where the claimant does not have its residence, or principal placeof business or, in the absence of residence or principal place of business, place of business ina Contracting Member State, the claimant may bring such an action against the ContractingMember State where the Court of Appeal has its seat, before the competent authority of thatContracting Member State.
The competent authority shall apply thelex fori,with the exception of its private internationallaw, to all questions not regulated by Union law or by this Agreement. The claimant shall beentitled to obtain the entire amount of damages awarded by the competent authority fromthe Contracting Member State against which the action was brought.
(3)
The Contracting Member State that has paid damages is entitled to obtain proportionalcontribution, established in accordance with the method laid down in Article 19(3) and (4),from the other Contracting Member States. The detailed rules governing the ContractingMember States’ contribution under this paragraph shall be determined by the AdministrativeCommittee.
Article 14dResponsibility of the Contracting Member States
Actions of the Court are directly attributable to each Contracting Member State individually,including for the purposes of Articles 258, 259 and 260 TFEU, and to all Contracting MemberStates collectively.
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CHAPTER IIIB – SOURCES OF LAW A D SUBSTA TIVE LAW
Article 14eSources of law
(1)
In full compliance with Article 14a, when hearing a case brought before it under thisAgreement, the Court shall base its decisions on:
(a)
Union law, including Regulation of the Council and the European Parliamentimplementing enhanced cooperation in the area of the creation of unitary patentprotection and Regulation of the Council implementing enhanced cooperation inthe area of the creation of unitary patent protection with regard to the applicabletranslation arrangements;
(b)(c)(d)
this Agreement;the EPC;other international agreements applicable to patents and binding on all the ContractingMember States; and
(e)
national law.
(2)
To the extent that the Court shall base its decisions on national law, including where relevantthe law of non-contracting States, the applicable law shall be determined:
(a)
by directly applicable provisions of Union law containing private international lawrules, or
(b)
in the absence of directly applicable provisions of Union law or where the latter do notapply, by international instruments containing private international law rules; or
(c)
in the absence of provisions referred to in (a) and (b), by national provisions on privateinternational law as determined by the Court.
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(3)
The law of non-contracting States shall apply when designated by application of the rulesreferred to in paragraph 2 , in particular in relation to Articles 14f through 14i, 33a, 34, 38, 41and 44a.
Article 14fRight to prevent the direct use of the invention
A patent shall confer on its proprietor the right to prevent any third party not having the proprietor'sconsent from the following:
(a)
making, offering, placing on the market or using a product which is the subject matterof the patent, or importing or storing the product for those purposes;
(b)
using a process which is the subject matter of the patent or, where the third party knows,or should have known, that the use of the process is prohibited without the consent ofthe patent proprietor, offering the process for use within the territory of the ContractingMember States in which that patent has effect ;
(c)
offering, placing on the market, using, or importing or storing for those purposes aproduct obtained directly by a process which is the subject matter of the patent.
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Article 14gRight to prevent the indirect use of the invention
(1)
A […] patent shall confer on its proprietor the right to prevent any third party not having theproprietor's consent from supplying or offering to supply, within the territory of theContracting Member States in which that patent has effect, any person other than a partyentitled to exploit the patented invention, with means, relating to an essential element of thatinvention, for putting it into effect therein, when the third party knows, or should have known,that those means are suitable and intended for putting that invention into effect.
(2)
Paragraph 1 shall not apply when the means are staple commercial products, except wherethe third party induces the person supplied to perform any of the acts prohibited byArticle 14f.
(3)
Persons performing the acts referred to in Article 14h (a) to (d) shall not be considered to beparties entitled to exploit the invention within the meaning of paragraph 1.
Article 14hLimitations of the effects of the European patent
The rights conferred by a […] patent shall not extend to any of the following:
(a)
acts done privately and for non-commercial purposes;
(b)
acts done for experimental purposes relating to the subject matter of the patented invention;
(ba) the use of biological material for the purpose of breeding, or discovering and developing otherplant varieties;
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(c)
the acts allowed pursuant to Article 13(6) of Directive 2001/82/EC6or Article 10(6) ofDirective 2001/83/EC7in respect of any patent covering the product within the meaning ofeither of those Directives;
(d)
the extemporaneous preparation by a pharmacy, for individual cases, of a medicine inaccordance with a medical prescription or acts concerning the medicine so prepared;
(e)
the use of the patented invention on board vessels of countries of the International Union forthe Protection of Industrial Property (Paris Union) or members of the World TradeOrganisation, other than those Contracting Member States in which that patent has effect, inthe body of such vessel, in the machinery, tackle, gear and other accessories, when suchvessels temporarily or accidentally enter the waters of a Contracting Member State in whichthat […] patent has effect, provided that the invention is used there exclusively for the needsof the vessel;
(f)
the use of the patented invention in the construction or operation of aircraft or land vehicles orother means of transport of countries of the International Union for the Protection ofIndustrial Property (Paris Union) or members of the World Trade Organisation, other thanthose Contracting Member States in which that […] patent has effect, or of accessories tosuch aircraft or land vehicles, when these temporarily or accidentally enter the territory of aContracting Member State in which that […] patent has effect;
(g)
the acts specified in Article 27 of the Convention on International Civil Aviation of7 December 19448, where these acts concern the aircraft of a country party to that Conventionother than a Contracting Member State in which that patent has effect;
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Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 onthe Community code relating to veterinary medicinal products (OJEU L 311, 28.11.2001,p.1), including any subsequent amendments.Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 onthe Community code relating to medicinal products for human use (OJEU L 311, 28.11.2001,p.67), including any subsequent amendments.International Civil Aviation Organization (ICAO), "Chicago Convention", Document 7300/9(9th edition, 2006)LK/loDG G 3B24
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(h)
the use by a farmer of the product of his harvest for propagation or multiplication by him onhis own holding, provided that the plant propagating material was sold or otherwisecommercialised to the farmer by or with the consent of the patent proprietor for agriculturaluse. The extent and the conditions for this use correspond to those under Article 14 ofRegulation (EC) No. 2100/949;
(i)
the use by a farmer of protected livestock for an agricultural purpose, provided that thebreeding stock or other animal reproductive material were sold or otherwise commercialisedto the farmer by or with the consent of the patent proprietor. Such use includes making theanimal or other animal reproductive material available for the purposes of pursuing thefarmer's agricultural activity, but not the sale thereof within the framework of, or for thepurpose of, a commercial reproductive activity;
(j)
the acts and the use of the obtained information as allowed under Articles 5 and 6 of CouncilDirective 2009/24/EC10, in particular, by its provisions on decompilation and interoperability;andthe acts allowed pursuant to Article 10 of Directive 98/44/EC11.
(k)
9
10
11
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights(OJEU L 227, 1.9.1994, p.1) including any subsequent amendments.Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 onthe legal protection of computer programs (OJEU L 111, 05/05/2009, p.16) including anysubsequent amendments.Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legalprotection of biotechnological inventions (OJEU L 213, 30.7.1998, p.13) including anysubsequent amendments.LK/loDG G 3B25
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Article 14iRight based on prior use of the invention
Any person, who, if a national patent had been granted in respect of an invention, would have had,in a Contracting Member State, a right based on prior use of that invention or a right of personalpossession of that invention, shall enjoy, in that Contracting Member State, the same rights inrespect of a […] patent for the same invention.
Article 14jEffects of supplementary protection certificates
A supplementary protection certificate shall confer the same rights as conferred by the patent andshall be subject to the same limitations and the same obligations.
Article 14 kExhaustion of the rights conferred by a European patentThe rights conferred by a European patent shall not extend to acts concerning a product covered bythat patent after that product has been placed on the market in the Union by, or with the consent of,the patent proprietor, unless there are legitimate grounds for the patent proprietor to oppose furthercommercialisation of the product.
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CHAPTER IV – I TER ATIO AL JURISDICTIO A D COMPETE CE
Article -15(ex 15b)International jurisdiction
The international jurisdiction of the Court shall be established in accordance with Regulation (EC)44/200112or, where applicable, on the basis of the Convention on jurisdiction and the recognitionand enforcement of judgments in civil and commercial matters (Lugano Convention).
Article 15Competence of the Court
(1)
[…] The Court shall have exclusive competence in respect of:(a)actions for actual or threatened infringements of patents and supplementary protectioncertificates and related defences, including counterclaims concerning licences;(a1) actions for declarations of non-infringement of patents and supplementary protectioncertificates;(b)(c)actions for provisional and protective measures and injunctions;actions for revocation of patents and for declaration of invalidity of […] supplementaryprotection certificates;(c1) counterclaims for revocation of patents and for declaration of invalidity of […]supplementary protection certificates;
12
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction andthe recognition and enforcement of judgments in civil and commercial matters,(OJEU L 12, 16.1.2001, p. 1) including any subsequent amendments.LK/loDG G 3B27
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(d)
actions for damages or compensation derived from the provisional protection conferredby a published European patent application;
(e)
actions relating to the use of the invention prior to the granting of the patent or tothe right based on prior use of the invention;
(f)
actions for compensation for licences on the basis of Article 11 of the Regulation of theEuropean Parliament and of the Council of the European Union implementing enhancedcooperation in the area of the creation of unitary patent protection; and
(g)
actions concerning decisions of the European Patent Office in carrying out the tasksreferred to in Article 12 of the Regulation of the European Parliament and of theCouncil of the European Union implementing enhanced cooperation in the area of thecreation of unitary patent protection.
(2)
The national courts of the Contracting Member States shall remain competent for actionsrelating to patents which do not come within the exclusive competence of the Court.
Article 15aCompetence of the divisions of the Court of First Instance
(1)
Without prejudice to paragraph 6 of this Article, actions referred to in Article 15(1)(a), (b), (d)and (e) shall be brought before:
(a)
the local division hosted by the Contracting Member State where the actual orthreatened infringement has occurred or may occur, or the regional division in whichthat Contracting Member State participates; or
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(b)
the local division hosted by the Contracting Member State where the defendant or, inthe case of multiple defendants, one of the defendants has its residence, or principalplace of business, or in the absence of residence or principal place of business, its placeof business, or the regional division in which that Contracting Member Stateparticipates. An action may be brought against multiple defendants only where thedefendants have a commercial relationship and where the action relates to the samealleged infringement.
Actions referred to in Article 15(1)(f) shall be brought before the local or regional division inaccordance with point (b) of the first subparagraph.
Actions against defendants having their residence, or principal place of business or, inthe absence of residence or principal place of business, their place of business, outside theterritory of the Contracting Member States shall be brought before the local or regionaldivision in accordance with point (a) of the first subparagraph of this paragraph or before thecentral division.
If the Contracting Member State concerned does not host a local division and does notparticipate in a regional division, actions shall be brought before the central division.
(1b) If an action referred to in Article 15(1)(a), (b), (d), (e) or (f) is pending before a division ofthe Court of First Instance, any action referred to in Article 15(1)(a), (b), (d), (e) or (f)between the same parties on the same patent may not be brought before any other division.
[If an action referred to in Article 15(1)(a) is pending before a regional division and theinfringement has occurred in the territories of three or more regional divisions, the regionaldivision concerned shall, at the request of the defendant, refer the case to the central division.]
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In case an action between the same parties on the same patent is brought before severaldifferent divisions, the division first seized shall be competent for the whole case and anydivision seized later shall declare the action inadmissible in accordance with the Rules ofProcedure.
(2)
A counterclaim for revocation as referred to in Article 15(1)(c1) may be brought in the case ofan action for infringement as referred to in Article 15(1)(a). The local or regional divisionconcerned shall, after having heard the parties, have the discretion either to:
(a)
proceed with both the action for infringement and with the counterclaim for revocationand request the President of the Court of First Instance to allocate from the Pool ofJudges in accordance with Article 13(3) a technically qualified judge with qualificationsand experience in the field of technology concerned.
(b)
refer the counterclaim for revocation for decision to the central division and suspend orproceed with the action for infringement; or
(c)
with the agreement of the parties, refer the case for decision to the central division.
(3)
Actions referred to in Article 15(1)(a1) and (c) shall be brought before the central division.If, however, an action for infringement as referred to in Article 15(1)(a) between the sameparties relating to the same patent has been brought before a local or a regional division, theseactions may only be brought before the same local or regional division.
(3a) Moved to paragraph 7a.
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(4)
If an action for revocation as referred to in Article 15(1)(c) is pending before the centraldivision, an action for infringement as referred to in Article 15(1)(a) between the same partiesrelating to the same patent may be brought before any division in accordance withparagraph 1 of this Article or before the central division. The local or regional divisionconcerned shall have the discretion to proceed in accordance with paragraph 2 of this Article.
(5)
An action for declaration of non-infringement as referred to in Article 15(1)(a1) pendingbefore the central division shall be stayed once an infringement action as referred to in Article15(1)(a) between the same parties or between the holder of an exclusive licence and the partyrequesting a declaration of non-infringement relating to the same patent is brought before alocal or regional division within three months of the date on which the action was initiatedbefore the central division.
(6)
Parties may agree to bring actions referred to in Article 15(1)(a)- (f) before the division oftheir choice, including the central division.
(7)
Actions referred to in Article 15(1)(c) and (c1) can be brought without the applicant having tofile notice of opposition with the European Patent Office.
(7a) Actions referred to in Article 15(1) (g) shall be brought before the central division.
(8)
A party shall inform the Court of any pending revocation, limitation or oppositionproceedings before the European Patent Office, and of any request for accelerated processingbefore the European Patent Office. The Court may stay its proceedings when a rapid decisionmay be expected from the European Patent Office.
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Article 15bInternational jurisdiction
Moved up as Art. -15
Article 16Territorial scope of decisions
Decisions of the Court shall cover, […] in the case of a European patent, the territory of thoseContracting Member States for which the European patent has effect.
CHAPTER V – PATE T MEDIATIO A D ARBITRATIO
Article 17Patent mediation and arbitration centre
(1)
A patent mediation and arbitration centre ("the Centre") is hereby established. It shall have itsseats in Ljubljana and Lisbon.
(2)
The Centre shall provide facilities for mediation and arbitration of patent disputes fallingwithin the scope of this Agreement. Article 56 shall apply mutatis mutandis to any settlementreached through the use of the facilities of the Centre, including through mediation. However,a patent may not be revoked or limited in mediation or arbitration proceedings.
(3)
Moved to Art 32(2))
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(4)
The Centre shall establish Mediation and Arbitration Rules.
(5)
The Centre shall draw up a list of mediators and arbitrators to assist the parties inthe settlement of their dispute.
PART II – FI A CIAL PROVISIO S
Article 18Budget of the Court
(1)
The budget of the Court shall be financed by the Court's own financial revenues and at least inthe transitional period referred to in Article 58 as necessary, by contributions fromthe Contracting Member States. The budget shall be balanced.
(2)
The Court's own financial revenues shall comprise court fees and other revenues.
(3)
Court fees shall be fixed by the Administrative Committee. They shall consist of a fixed fee,combined with a value-based fee above a pre-defined ceiling. The Court fees shall be fixed atsuch a level as to ensure a right balance between the principle of fair access to justice, inparticular for small and medium-sized enterprises, micro-entities, natural persons, non-profitorganisations, universities and public research organisations and an adequate contribution ofthe parties for the costs incurred by the Court, recognising the economic benefits to the partiesinvolved, and the objective of a self-financing Court with balanced finances. The level ofthe Court fees shall be reviewed periodically by the Administrative Committee. Targetedsupport measures for small and medium-sized enterprises and micro entities might beconsidered.
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(4)
If the Court is unable to balance its budget out of its own resources, the Contracting MemberStates shall remit to it special financial contributions.
Article 19Financing of the Court
(1)
The operating costs of the Court shall be covered by the budget of the Court, in accordancewith the Statute.Contracting Member States setting up a local division shall provide the facilities necessary forthat purpose. Contracting Member States sharing a regional division shall provide jointly thefacilities necessary for that purpose. Contracting Member States hosting the central division ,its sections or the Court of Appeal shall provide the facilities necessary for that purpose.During an initial transitional period of seven years starting from the date of the entry intoforce of this Agreement, the Contracting Member States concerned shall also provideadministrative support staff, without prejudice to the Statute of that staff.
(2)
On the date of entry into force of this Agreement, the Contracting Member States shallprovide the initial financial contributions necessary for the setting up of the Court.
(3)
During the initial transitional period of seven years, starting from the date of the entry intoforce of this Agreement, the contribution by each Contracting Member State having ratified oracceded to the Agreement before the entry into force thereof shall be calculated on the basisof the number of European patents having effect in the territory of that State on the date ofentry into force of this Agreement and the number of European patents with respect to whichactions for infringement or for revocation have been brought before the national courts of thatState in the three years preceding entry into force of this Agreement.
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During the same initial transitional period of seven years, for Member States which ratify, oraccede to, this Agreement after the entry into force thereof, the contributions shall becalculated on the basis of the number of European patents having effect in the territory of theratifying or acceding Member State on the date of the ratification or accession and the numberof European patents with respect to which actions for infringement or for revocation havebeen brought before the national courts of the ratifying or acceding Member State in the threeyears preceding the ratification or accession.
(4)
After the end of the initial transitional period of seven years, by which the Court is expected tohave become self-financing, should contributions by the Contracting Member States becomenecessary, they shall be determined in accordance with the scale for the distribution of annualrenewal fees for European patents with unitary effect applicable at the time the contributionbecomes necessary.
Article 20Financing of the training framework for judges
The training framework for judges shall be financed by the budget of the Court.
Article 21Financing of the Centre
The operating costs of the Centre shall be financed by the budget of the Court.
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PART III – ORGA ISATIO A D PROCEDURAL PROVISIO S
CHAPTER I – GE ERAL PROVISIO S
Article 21aStatute
(1)
The Statute shall lay down the details of the organisation and functioning of the Court.
(2)
The Statute is annexed to this Agreement. The Statute may be amended by decision ofthe Administrative Committee, on the basis of a proposal of the Court or a proposal ofa Contracting Member State after consultation with the Court. However, such amendmentsshall not contradict or alter this Agreement.
(3)
The Statute shall guarantee that the functioning of the Court is organised in the most efficientand cost-effective manner and shall ensure equitable access to justice.
Article 22Rules of Procedure
(1)
The Rules of Procedure shall lay down the details of the proceedings before the Court. Theyshall comply with this Agreement and the Statute.
(2)
The Rules of Procedure shall be adopted by the Administrative Committee on the basis ofbroad consultations with stakeholders. The prior opinion of the European Commission on thecompatibility of the Rules of Procedure with Union law shall be requested.
The Rules of Procedure may be amended by a decision of the Administrative Committee, onthe basis of a proposal from the Court and after consultation with the European Commission.However, such amendments shall not contradict or alter this Agreement or the Statute.
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(3)
The Rules of Procedure shall guarantee that the decisions of the Court are of the highestquality and that proceedings are organised in the most efficient and cost effective manner.They shall ensure a fair balance between the legitimate interests of all parties. They shallprovide for the required level of discretion of judges without impairing the predictability ofproceedings for the parties.
Article 23Proportionality and fairness
(1)
The Court shall deal with litigation in ways which are proportionate to the importance andcomplexity thereof.
(2)
The Court shall ensure that the rules, procedures and remedies provided for in this Agreementand in the Statute are used in a fair and equitable manner and do not distort competition.
Article 24Case management
The Court shall actively manage the cases before it in accordance with the Rules of Procedurewithout impairing the freedom of the parties to determine the subject-matter of, and the supportingevidence for, their case.
Article 25Electronic procedures
The Court shall make best use of electronic procedures, such as the electronic filing of submissionsof the parties and stating of evidence in electronic form, as well as video conferencing, inaccordance with the Rules of Procedure.
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Article 26Public proceedings
The proceedings shall be open to the public unless the Court decides to make them confidential, tothe extent necessary, in the interest of one of the parties or other affected persons, or in the generalinterest of justice or public order.Article 26aLegal capacity
Any natural or legal person, or any body equivalent to a legal person entitled to initiate proceedingsin accordance with its national law, shall have the capacity to be a party to the proceedings beforethe Court.
Article 27Parties
(1)
The patent proprietor shall be entitled to bring actions before the Court.
(2)
Unless the licensing agreement provides otherwise, the holder of an exclusive licence inrespect of a patent shall be entitled to bring actions before the Court under the samecircumstances as the patent proprietor, provided that the patent proprietor is given priornotice.
(3)
The holder of a non-exclusive licence shall not be entitled to bring actions before the Court,unless the patent proprietor is given prior notice and in so far as expressly permitted by thelicence agreement.
(4)
In actions brought by a licence holder, the patent proprietor shall be entitled to join the actionbefore the Court.
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(5)
The validity of a patent cannot be contested in an action for infringement brought bythe holder of a licence where the patent proprietor does not take part in the proceedings. Theparty in an action for infringement wanting to contest the validity of a patent shall have tobring actions against the patent proprietor.
(6)
Any other natural or legal person, or any body entitled to bring actions in accordance with itsnational law, who is concerned by a patent, may bring actions in accordance with the Rules ofProcedure.
(7)
Any natural or legal person, or any body entitled to bring actions in accordance with itsnational law and who is affected by a decision of the European Patent Office in carrying outthe tasks referred to in Article 12 of the Regulation of the European Parliament and theCouncil of the European Union implementing enhanced cooperation in the area of the creationof unitary patent protection is entitled to bring actions under Article 15(1)(g).
Article 28Representation
(1)
Parties shall be represented by lawyers authorised to practise before a court of a ContractingMember State.
(2)
Parties may alternatively be represented by European Patent Attorneys who are entitled to actas professional representatives before the European Patent Office pursuant to Article 134 ofthe EPC and who have appropriate qualifications such as a European Patent LitigationCertificate.
(2a) Moved down as (3a)
(3)
The requirements for qualifications pursuant to paragraph 2 shall be established bythe Administrative Committee. A list of European Patent Attorneys entitled to representparties before the Court shall be kept by the Registrar.
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(3a) Representatives of the parties may be assisted by patent attorneys, who shall be allowed tospeak at hearings of the Court in accordance with the Rules of Procedure.
(4)
Representatives of the parties shall enjoy the rights and immunities necessary forthe independent exercise of their duties, including the privilege from disclosure inproceedings before the Court in respect of communications between a representative andthe party or any other person, under the conditions laid down in the Rules of Procedure,unless such privilege is expressly waived by the party concerned.
(5)
Representatives of the parties shall be obliged not to misrepresent cases or facts beforethe Court either knowingly or with good reasons to know.
(6)
Representation in accordance with paragraphs 1 and 2 shall not be required in proceedingsunder Article 15(1)(g).
CHAPTER II – LA GUAGE OF PROCEEDI GS
Article 29Language of proceedings at the Court of First Instance
(1)
The language of proceedings before any local or regional division shall be an officialEuropean Union language which is the official language or one of the official languages ofthe Contracting Member State hosting the relevant division, or the official language(s)designated by Contracting Member States sharing a regional division.
(2)
Notwithstanding paragraph 1, Contracting Member States may designate one or more ofthe official languages of the European Patent Office as the language of proceedings of theirlocal or regional division.
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(3)
The parties may agree on the use of the language in which the patent was granted as thelanguage of proceedings, subject to approval by the competent panel. If the panel does notapprove their choice, the parties may request that the case be referred to the central division.
(4)
With the agreement of the parties the competent panel may, on grounds of convenience andfairness, decide on the use of the language in which the patent was granted as the language ofproceedings.
(4a) At the request of one of the parties and after having heard the other parties and the competentpanel, the President of the Court of First Instance may, on grounds of fairness and taking intoaccount all relevant circumstances, including the position of parties, in particular the positionof the defendant, decide on the use of the language in which the patent was granted aslanguage of proceedings. In this case the President of the Court of First Instance shall assessthe need for specific translation and interpretation arrangements.
(5)
The language of proceedings at the central division shall be the language in which the patentconcerned was granted.
Article 30Language of proceedings at the Court of Appeal
(1)
The language of proceedings before the Court of Appeal shall be the language of proceedingsbefore the Court of First Instance.
(2)
Notwithstanding paragraph 1 the parties may agree on the use of the language in which thepatent was granted as the language of proceedings.
(3)
In exceptional cases and to the extent deemed appropriate, the Court of Appeal may decide onanother official language of a Contracting Member State as the language of proceedings forthe whole or part of the proceedings, subject to agreement by the parties.
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Article 31Other language arrangements
(1)
Any panel of the Court of First Instance and the Court of Appeal may, to the extent deemedappropriate, dispense with translation requirements.
(2)
At the request of one of the parties, and to the extent deemed appropriate, any division ofthe Court of First Instance and the Court of Appeal shall provide interpretation facilities toassist the parties concerned at oral proceedings.
(3)
Notwithstanding Article 29(5), in cases where an action for infringement is brought beforethe central division, a defendant having its residence, principal place of business or place ofbusiness in a Member State shall have the right to obtain, upon request, translations ofrelevant documents in the language of the Member State of residence, principal place ofbusiness or, in the absence of residence or principal place of business, place of business, in thefollowing circumstances:
(a)
jurisdiction is entrusted to the central division in accordance with Article 15a (1) thirdor fourth subparagraph, and
(b)
the language of proceedings at the central division is a language which is not an officiallanguage of the Member State where the defendant has its residence, principal place ofbusiness or, in the absence of residence or principal place of business, place of business,and
(c)
the defendant does not have proper knowledge of the language of the proceedings.
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CHAPTER III – PROCEEDI GS BEFORE THE COURTArticle 32Written, interim and oral procedures(1) The proceedings before the Court shall consist of a written, an interim and an oral procedure,in accordance with the Rules of Procedure. All procedures shall be organized in a flexibleand balanced manner.(2)In the interim procedure, after the written procedure and if appropriate, the judge acting asRapporteur, subject to a mandate of the full panel, shall be responsible for convening aninterim hearing. That judge shall in particular explore with the parties the possibility for asettlement, including through mediation, and/or arbitration, by using the facilities of theCentre referred to in Article 17.
(3)
The oral procedure shall give parties the opportunity to explain properly their arguments.The Court may, with the agreement of the parties, dispense with the oral hearing.Article 33Means of evidence
(1)
In proceedings before the Court, the means of giving or obtaining evidence shall include inparticular the following:
(a)(b)(c)(d)(e)(f)
hearing the parties;requests for information;production of documents;hearing witnesses;opinions by experts;inspection;
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(g)(h)
comparative tests or experiments;sworn statements in writing (affidavits).
(2)
The Rules of Procedure shall govern the procedure for taking such evidence. Questioning ofwitnesses and experts shall be under the control of the Court and be limited to what isnecessary.
Article 33aBurden of proof
Without prejudice to Article 14e(2) and (3), the burden of the proof of facts shall be on the partyrelying on those facts.
Article 34Reversal of burden of proof
(1) Without prejudice to Article 14e(2) and (3), if the subject-matter of a patent is a process forobtaining a new product, the identical product when produced without the consent of thepatent proprietor shall, in the absence of proof to the contrary, be deemed to have beenobtained by the patented process.
(2)
The principle set out in paragraph 1 shall also apply where there is a substantial likelihoodthat the identical product was made by the patented process and the patent proprietor has beenunable, despite reasonable efforts, to determine the process actually used for such identicalproduct.
(3)
In the adduction of proof to the contrary, the legitimate interests of the defendant in protectingits manufacturing and trade secrets shall be taken into account.
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CHAPTER IV – POWERS OF THE COURT
Article 34aThe general powers of the Court
(1)
The Court may impose such measures, procedures and remedies as are laid down in thisAgreement and may make its orders subject to conditions, in accordance with the Rules ofProcedure.
(2)
The Court shall take due account of the interest of the parties and shall, before makingan order, give any party the opportunity to be heard, unless this is incompatible withthe effective enforcement of such order.
Article 34b (ex Art 36)Court experts
(1)
Without prejudice to the possibility for the parties to produce expert evidence, the Court mayat any time appoint court experts in order to provide expertise for specific aspects of the case.The Court shall provide such expert with all information necessary for the provision of theexpert advice.
(2)
To this end, an indicative list of experts shall be drawn up by the Court in accordance withthe Rules of Procedure. That list shall be kept by the Registrar.
(3)
The court experts shall guarantee independence and impartiality. Rules governing conflicts ofinterest applicable to judges set out in Article 5 of the Statute shall by analogy apply to courtexperts.
(4)
Expert advice given to the Court by court experts shall be made available to the parties whichshall have the possibility to comment on it.
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Article 34c (ex-40)Protection of confidential information
To protect the trade secrets, personal data or other confidential information of a party to theproceedings or of a third party, or to prevent an abuse of evidence, the Court may order that thecollection and use of evidence in proceedings before it be restricted or prohibited or that access tosuch evidence be restricted to specific persons.
Article 35Order to produce evidence
(1)
At the request of a party which has presented reasonably available evidence sufficient tosupport its claims and has, in substantiating those claims, specified evidence which lies in thecontrol of the opposing party or a third party, the Court may order the opposing party or athird party to present such evidence, subject to the protection of confidential information.Such order shall not result in an obligation of self-incrimination,.
(2)
At the request of a party the Court may order, under the same conditions as specified inparagraph 1, the communication of banking, financial or commercial documents underthe control of the opposing party, subject to the protection of confidential information.
Article 35aOrder to preserve evidence and to inspect premises
(1)
At the request of the applicant which has presented reasonably available evidence to supportthe claim that the patent has been infringed or is about to be infringed the Court may, evenbefore the commencement of proceedings on the merits of the case, order prompt andeffective provisional measures to preserve relevant evidence in respect of the allegedinfringement, subject to the protection of confidential information.
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(2)
Such measures may include the detailed description, with or without the taking of samples, orthe physical seizure of the infringing products, and, in appropriate cases, the materials andimplements used in the production and/or distribution of those products and the documentsrelating thereto.
(2a) The Court may, even before the commencement of proceedings on the merits of the case, atthe request of the applicant who has presented evidence to support the claim that the patenthas been infringed or is about to be infringed, order the inspection of premises. Suchinspection of premises shall be conducted by a person appointed by the Court in accordancewith the Rules of Procedure.
(3)
At the inspection of the premises the applicant shall not be present itself but may berepresented by an independent professional practitioner whose name has to be specified inthe Court’s order.
(4)
Measures shall be ordered, if necessary without the other party having been heard, inparticular where any delay is likely to cause irreparable harm to the proprietor of the patent, orwhere there is a demonstrable risk of evidence being destroyed.
(5)
Where measures to preserve evidence or inspect premises are ordered without the other partyin the case having been heard, the parties affected shall be given notice, without delay and atthe latest immediately after the execution of the measures. A review, including a right to beheard, shall take place upon request of the parties affected with a view to deciding, within areasonable period after the notification of the measures, whether the measures are to bemodified, revoked or confirmed.
(5a) The measures to preserve evidence may be subject to the lodging by the applicant of adequatesecurity or an equivalent assurance intended to ensure compensation for any prejudicesuffered by the defendant as provided for in paragraph 7.
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(6)
The Court shall ensure that the measures to preserve evidence are revoked or otherwise ceaseto have effect, at the defendant's request, without prejudice to the damages which may beclaimed, if the applicant does not bring, within a period not exceeding 31 calendar days or20 working days, whichever is the longer, action leading to a decision on the merits of thecase before the Court.
(7)
Where the measures to preserve evidence are revoked, or where they lapse due to any act oromission by the applicant, or where it is subsequently found that there has been noinfringement or threat of infringement of the patent, the Court may order the applicant, at thedefendant's request, to provide the defendant with appropriate compensation for any damagesuffered as a result of those measures.
Article 35bFreezing orders
(1)
At the request of the applicant which has presented reasonably available evidence to supportthe claim that the patent has been infringed or is about to be infringed the Court may, evenbefore the commencement of proceedings on the merits of the case, order a party not toremove from its jurisdiction any assets located therein, or not to deal in any assets, whetherlocated within its jurisdiction or not.
(2)
Article 35a (4)-(7) shall apply by analogy to the measures referred to in this Article.
Article 36
Moved up as Art. 34b
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Article 37Provisional and protective measures
(1)
The Court may, by way of order, grant injunctions against an alleged infringer or against anintermediary whose services are used by the alleged infringer, intended to prevent anyimminent infringement, to prohibit, on a provisional basis and subject, where appropriate, to arecurring penalty payment, the continuation of the alleged infringement or to make suchcontinuation subject to the lodging of guarantees intended to ensure the compensation of therightholder.
(2)
The Court shall have the discretion to weigh up the interests of the parties and in particular totake into account the potential harm for either of the parties resulting from the granting orthe refusal of the injunction.
(3)
The Court may also order the seizure or delivery up of the products suspected of infringinga patent so as to prevent their entry into, or movement, within the channels of commerce. Ifthe applicant demonstrates circumstances likely to endanger the recovery of damages,the Court may order the precautionary seizure of the movable and immovable property ofthe alleged infringer, including the blocking of the bank accounts and of other assets of thealleged infringer.
(4)
The Court may, in respect of the measures referred to in paragraphs 1 and 3, requirethe applicant to provide any reasonable evidence in order to satisfy itself with a sufficientdegree of certainty that the applicant is the right-holder and that the applicant's right is beinginfringed, or that such infringement is imminent.
(5)
Article 35a(4)-(7) shall apply by analogy to the measures referred to in this Article.
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Article 37aPermanent injunctions(1)Where a decision is taken finding an infringement of a patent, the Court may grantan injunction against the infringer aimed at prohibiting the continuation of the infringement.The Court may also grant such injunction against an intermediary whose services are beingused by a third party to infringe a patent.
(2)
Where appropriate, non-compliance with the injunction referred to in paragraph 1 shall besubject to a recurring penalty payment payable to the Court.
Article 38Corrective measures in infringement proceedings(1)Without prejudice to any damages due to the injured party by reason of the infringement, andwithout compensation of any sort, the Court may order, at the request of the applicant, thatappropriate measures be taken with regard to products found to be infringing a patent and, inappropriate cases, with regard to materials and implements principally used in the creation ormanufacture of those products.
(2)
Such measures shall include:
(a)
a declaration of infringement;
(b)
recalling the products from the channels of commerce;
(c)
depriving the product of its infringing property;
(d)
definitively removing the products from the channels of commerce; or
(e)
the destruction of the products and/or of the materials and implements concerned.
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(3)
The Court shall order that those measures be carried out at the expense of the infringer, unlessparticular reasons are invoked for not doing so.
(4)
In considering a request for corrective measures pursuant to this Article, the Court shall takeinto account the need for proportionality between the seriousness of the infringement and theremedies to be ordered, the willingness of the infringer to convert the materials into a non-infringing state, as well as the interests of third parties.
Article 38aDecision on the validity of a patent
(1)
The Court shall decide on the validity of a patent on the basis of an action for revocation or acounterclaim for revocation.
(2)
The Court may revoke a patent, either entirely or partly, only on the grounds referred to inArticles 138(1) and 139(2) of the EPC.
(3)
Without prejudice to Article 138(3) of the EPC, if the grounds for revocation affect the patentonly in part, the patent shall be limited by a corresponding amendment of the claims andrevoked in part.
(4)
To the extent that a patent has been revoked it shall be deemed not to have had, fromthe outset, the effects specified in Articles 64 and 67 of the EPC.
(5)
Where the Court, in a final decision, revokes a patent, either entirely or partly, it shall send acopy of the decision to the European Patent Office and, with respect to a European patent, tothe national patent office of any Contracting Member State concerned.
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Article 38bPowers of the Court concerning decisions of the European Patent Office
(1) In actions brought under Article 15(1)(g), the Court may exercise any power entrustedon the European Patent Office in accordance with Article 12 of the Regulation of theEuropean Parliament and the Council of the European Union implementing enhancedcooperation in the area of the creation of unitary patent protection, including therectification of the Register for unitary patent protection.
(2) In actions brought under Article 15(1)(g) the parties shall, by way of derogation fromArticle 42, bear their own costs.
Article 39Power to order the communication of information
(1)
The Court may, in response to a justified and proportionate request of the applicant and inaccordance with the Rules of Procedure, order an […] infringer to inform the applicant of:
(a)
the origin and distribution channels of the […] infringing products or processes;
(b)
the quantities produced, manufactured, delivered, received or ordered, as well asthe price obtained for the […] infringing products; and
(c)
the identity of any third person involved in the production or distribution of the […]infringing products or in the use of the […] infringing process.
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(2)
The Court may, in accordance with the Rules of Procedure, also order any third party who, ona commercial scale:
(a)
was found in the possession of the […] infringing products or in the use of an […]infringing process;
(b)
was found to be providing services used in […] infringing activities; or
(c)
was indicated by the person referred to in (a) or (b) as being involved in the production,manufacture or distribution of the […] infringing products or processes or in theprovision of the services,
to provide the applicant with the information referred to in paragraph 1.
Article 40Protection of confidential information
Moved up as Art. 34c.
Article 41Award of damages
(1)
The Court shall, at the request of the injured party, order the infringer who knowingly, or withreasonable grounds to know, engaged in a patent infringing activity, to pay the injured partydamages appropriate to the harm actually suffered by that party as a result of theinfringement.
(2)
The injured party shall, to the extent possible, be placed in the position it would have been inif no infringement had taken place. The infringer shall not benefit from the infringement.However, damages shall not be punitive.
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(3)
When the Court sets the damages:
(a)
it shall take into account all appropriate aspects, such as the negative economicconsequences, including lost profits, which the injured party has suffered, any unfairprofits made by the infringer and, in appropriate cases, elements other than economicfactors, such as the moral prejudice caused to the injured party by the infringement; or
(b)
as an alternative to (a), it may, in appropriate cases, set the damages as a lump sum onthe basis of elements such as at least the amount of the royalties or fees which wouldhave been due if the infringer had requested authorisation to use the patent in question.
(4)
Where the infringer did not knowingly, or with reasonable grounds to know, engage in theinfringing activity, the Court may order the recovery of profits or the payment ofcompensation.
Article 42Legal costs
(1)
Reasonable and proportionate legal costs and other expenses incurred by the successful partyshall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise,up to a ceiling set in accordance with the Rules of Procedure.
(2)
Where a party succeeds only in part or in exceptional circumstances, the Court may order thatcosts be apportioned equitably or that the parties bear their own costs.
(3)
A party should bear any unnecessary costs it has caused the Court or another party.
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(4)
At the request of the defendant, the Court may order the applicant to provide adequatesecurity for the legal costs and other expenses incurred by the defendant which the applicantmay be liable to bear, in particular in the cases referred to in Articles 35, 35a, 35b and 37.
Article 43Court fees
(1)
Parties to proceedings before the Court shall pay court fees.
(2)
Court fees shall be paid in advance, unless the Rules of Procedure provide otherwise. Anyparty which has not paid a prescribed court fee may be excluded from further participation inthe proceedings.
Article 44Legal aid
(1)
A party who is a natural person and who is unable to meet the costs of the proceedings, eitherwholly or in part, may at any time apply for legal aid. The conditions for granting of legal aidshall be laid down in the Rules of Procedure.
(2)
The Court shall decide whether legal aid should be granted in full or in part, or whether itshould be refused, in accordance with the Rules of Procedure.
(3)
On a proposal from the Court, the Administrative Committee shall set the level of legal aidand the rules on bearing the costs thereof.
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Article 44aPeriod of limitation
(1)
Without prejudice to Article 14e(2) and (3), actions relating to all forms of financialcompensation may not be brought more than five years after the date on which the applicantbecame aware, or had reasonable grounds to become aware, of the last fact justifying theaction.
(2)
Deleted.
CHAPTER V – APPEALS
Article 45Appeal
(1) An appeal against a decision of the Court of First Instance may be brought before the Court ofAppeal by any party which has been unsuccessful, in whole or in part, in its submissions,within two months of the date of the notification of the decision.
(1a) An appeal against an order of the Court of First Instance may be brought before the Court ofAppeal by any party which has been unsuccessful, in whole or in part, in its submissions:(a) for the orders referred to in Articles 29(4a), 35, 35a, 35b, 37 and 39 within 15 calendardays of the notification of the order to the applicant ;(b) for other orders than the orders referred to in point (a):(i) together with the decision, or(ii) where the Court grants leave to appeal, within 15 days of the notification of theCourt's decision to that effect.
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(2)
Merged with (1) and (1a)
(3)
The appeal against a decision or an order of the Court of First Instance may be based onpoints of law and matters of fact.
(4)
New facts and new evidence may only be introduced in accordance with the Rules ofProcedure and where the submission thereof by the party concerned could not reasonablyhave been expected during proceedings before the Court of First Instance.
Article 46Effects of an appeal
(1)
An appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at themotivated request of one of the parties. The Rules of Procedure shall guarantee that such adecision is taken without delay.
(2)
Notwithstanding paragraph 1, an appeal against a decision on actions or counterclaims forrevocation and on actions based on Article 15(1)(g) shall always have suspensive effect.
(3)
An appeal against an order referred to in Articles 29(4a), 35, 35a, 35b, 37 or 39 shall notprevent the continuation of the main proceedings . However, the Court of First Instance shallnot give a decision in the main proceedings before the decision of the Court of Appealconcerning an appealed order has been given.
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Article 47Decision on appeal and referral back
(1)
If an appeal pursuant to Article 45 is well-founded, the Court of Appeal shall revoke thedecision of the Court of First Instance and give a final decision. The Court of Appeal may inexceptional cases and in accordance with the Rules of Procedure refer the case back to theCourt of First Instance for decision.
(2) Where a case is referred back to the Court of First Instance pursuant to paragraph 1, theCourt of First Instance shall be bound by the decision of the Court of Appeal on points oflaw.
CHAPTER VI - DECISIO SArticle 49Basis for decisions and right to be heard
(1)
The Court shall decide in accordance with the requests submitted by the parties and shall notaward more than is requested.
(2)
Decisions on the merits may only be based on grounds, facts and evidence, which weresubmitted by the parties or introduced into the procedure by an order of the Court and onwhich the parties have had an opportunity to present their comments.
(3)
Merged with (2)
(4)
The Court shall evaluate evidence freely and independently.
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Article 50Formal requirements
(1)
Decisions and orders of the Court shall be reasoned and shall be given in writing inaccordance with the Rules of Procedure.
(2)
Decisions and orders of the Court shall be delivered in the language of proceedings.
Article 51Decisions of the Court and dissenting opinions
(1)
Decisions and orders of the Court shall be taken by a majority of the panel, in accordancewith the Statute. In case of equal votes, the vote of the presiding judge shall prevail.
(2)
In exceptional circumstances, any judge of the panel may express a dissenting opinionseparately from the decision of the Court.
Article 52Settlement
The parties may, at any time in the course of proceedings, conclude their case by way of settlement,which shall be confirmed by a decision of the Court. A patent may not be revoked or limited by wayof settlement.
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Article 54Publication of decisions
The Court may order, at the request of the applicant and at the expense of the infringer, appropriatemeasures for the dissemination of information concerning the Court's decision, including displayingthe decision and publishing it in full or in part in public media.
Article 55Rehearing
(1)
A request for rehearing after a final decision of the Court may exceptionally be granted by theCourt of Appeal in the following circumstances:
(a)
on discovery of a fact by the party requesting the rehearing, which is of such a nature asto be a decisive factor and which, when the decision was given, was unknown tothe party requesting the rehearing; such request may only be granted on the basis of anact which was held, by a final decision of a national court, to constitute a criminaloffence; or
(b)
in the event of a fundamental procedural defect, in particular when a defendant who didnot appear before the Court was not served with the document initiating the proceedingsor an equivalent document in sufficient time and in such a way as to enable him toarrange for the defence.
(2)
A request for a rehearing shall be filed within 10 years of the date of the decision but not laterthan two months from the date of the discovery of the new fact or of the procedural defect.Such request shall not have suspensive effect unless the Court of Appeal decides otherwise.
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(3)
If the request for a rehearing is well-founded, the Court of Appeal shall set aside, in whole orin part, the decision under review and re-open the proceedings for a new trial and decision, inaccordance with the Rules of Procedure.
(4)
Persons using patents which are the subject-matter of a decision under review and who act ingood faith should be allowed to continue using such patents.
Article 56Enforcement of decisions and orders
(1)
Decisions and orders of the Court shall be enforceable in any Contracting Member State. Anorder for the enforcement of a decision shall be appended to the decision by the Court.
(2)
Where appropriate, the enforcement of a decision may be subject to the provision of securityor an equivalent assurance to ensure compensation for any damage suffered, in particular inthe case of injunctions.
(3)
Without prejudice to this Agreement and the Statute, enforcement procedures shall begoverned by the law of the Contracting Member State where the enforcement takes place.Any decision of the Court shall be enforced under the same conditions as a decision given inthe Contracting Member State where the enforcement takes place.
(4)
If a party does not comply with the terms of an order of the Court, that party may besanctioned with a recurring penalty payment payable to the Court. The individual penaltyshall be proportionate to the importance of the order to be enforced and shall be withoutprejudice to the party's right to claim damages or security.
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PART IIIA – IMPLEME TATIO A D OPERATIO OF THE AGREEME TMoved up after art 9PART IV – TRA SITIO AL PROVISIO SArticle 58Transitional regime(1) During a transitional period of seven years after the date of entry into force of this Agreement,an action for infringement or for revocation of a European patent or an action for infringementor for declaration of invalidity of a supplementary protection certificate issued for a productprotected by a European patent may still be brought before national courts or other competentnational authorities.(2)An action pending before a national court at the end of the transitional period shall not beaffected by the expiry of this period.(3)Unless an action has already been brought before the Court, a proprietor of or an applicant fora European patent granted or applied for prior to the end of the transitional period underparagraph 1 and, where applicable, paragraph 5, as well as a holder of a supplementaryprotection certificate issued for a product protected by a European patent, shall havethe possibility to opt out from the exclusive competence of the Court. To this end they shallnotify their opt-out to the Registry by the latest one month before expiry of the transitionalperiod. The opt-out shall take effect upon its entry into the Registry.
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(4)
Unless an action has already been brought before a national court, proprietors of or applicantsfor European patents or holders of supplementary protection certificates issued for a productprotected by a European patent who made use of the opt-out in accordance with paragraph 3shall be entitled to withdraw their opt-out at any moment. In this event they shall notify theRegistry accordingly. The withdrawal of the opt-out shall take effect upon its entry into theRegistry.
(5)
Five years after the entry into force of this Agreement, the Administrative Committee shallcarry out a broad consultation with the users of the patent system and a survey on the numberof European patents and supplementary protection certificates issued for products protectedby European patents with respect to which actions for infringement or for revocation ordeclaration of invalidity are still brought before the national courts pursuant to paragraph 1,the reasons for this and the implications thereof. On the basis of this consultation and anopinion of the Court, the Administrative Committee may decide to prolong the transitionalperiod by up to seven years.
PART V – FI AL PROVISIO S
Article 58aSignature, ratification and accession
(1)
This Agreement shall be open for signature by any Member State on 18 February 2013.
(1a) This Agreement shall be subject to ratification in accordance with the respective constitutionalrequirements of the Member States. Instruments of ratification shall be deposited withthe General Secretariat of the Council of the European Union (hereinafter referred to as"the depositary").
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(2)
Each Member State having signed this Agreement shall notify the European Commission ofits ratification of the Agreement at the time of the deposit of its ratification instrumentpursuant to Article 22(2a) of the Regulation of the European Parliament and of the Council ofthe European Union implementing the enhanced cooperation in the area of the creation ofunitary patent protection.
(3)
This Agreement shall be open to accession by any Member State. Instruments of accessionshall be deposited with the depositary.
Article 58aaFunctions of the depositary
(1)
The depositary shall draw up certified true copies of this Agreement and shall transmit them tothe governments of all signatory or acceding Member States.
(2)
The depositary shall notify the governments of the signatory or acceding Member States of:(a)(b)(c )any signature ;the deposit of any instrument of ratification or accession ;the date of entry into force of this Agreement.
(3)
The depositary shall register this Agreement with the Secretariat of the United Nations.
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Article 58bMembershipMerged with 58a
Article 58cDuration of the Agreement
This Agreement shall be of unlimited duration.
Article 58dRevision
(1)
Either seven years after the entry into force of this Agreement or once 2000 infringementcases have been decided by the Court, whichever is the later point in time, and if necessary atregular intervals thereafter, a broad consultation with the users of the patent system shall becarried out by the Administrative Committee on the functioning, efficiency and cost-effectiveness of the Court and on the trust and confidence of users of the patent system in thequality of the Court's decisions. On the basis of this consultation and an opinion of the Court,the Administrative Committee may decide to revise this Agreement with a view to improvingthe functioning of the Court.
(2)
The Administrative Committee may amend this Agreement to bring it into line withan international treaty relating to patents or Union law.
(3)
A decision of the Administrative Committee taken on the basis of paragraphs 1 and 2 shall nottake effect if a Contracting Member State declares within twelve months of the date ofthe decision, on the basis of its relevant internal decision-making procedures, that it does notwish to be bound by the decision. In this case, a Review Conference of the ContractingMember States shall be convened.
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Article 58fLanguages of the Agreement(1)This Agreement is drawn up in a single original in the English, French and German languages,each text being equally authentic.(2)The texts of this Agreement drawn up in official languages of Contracting Member Statesother than those specified in paragraph 1 shall, if they have been approved by theAdministrative Committee, be considered as official texts. In the event of divergencesbetween the various texts, the texts referred to in paragraph 1 shall prevail.Article 59Entry into force(1)This Agreement shall enter into force on 1 January 2014 or on the first day of the fourthmonth after the deposit of the thirteenth instrument of ratification or accession in accordancewith Article 58a, including the three Member States in which the highest number of Europeanpatents had effect in the year preceding the year in which the signature of the Agreementtakes place or on the first day of the fourth month after the date of entry into force of theamendments to Regulation (EC) 44/200113concerning its relationship with this Agreement,whichever is the latest.(1a)Deleted.(2)Any ratification or accession after the entry into force of this Agreement shall take effect onthe first day of the fourth month after the deposit of the instrument of ratification or accession.
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Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction andthe recognition and enforcement of judgments in civil and commercial matters,OJEU L 12, 16.1.2001, p. 1), including any subsequent amendments.LK/loDG G 3B66
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In witness whereof the undersigned, being duly authorised thereto, have signed this Agreement,Done at Brussels on 18 February 2013 in English, French and German, all three texts being equallyauthentic, in a single copy which shall be deposited in the archives of the General Secretariat of theCouncil of the European Union.
___________________
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A
EX I TO THE A
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DRAFT STATUTE OF THE U IFIED PATE T COURT
Article 1Scope of the Statute
This Statute contains institutional and financial arrangements for the Unified Patent Court asestablished under Article 1 of the Agreement.
CHAPTER I - JUDGES
Article 2Eligibility of judges
(1)
Any person who is a national of a Contracting Member State and fulfils the conditions set outin Article 10 of the Agreement and in this Statute may be appointed as a judge.
(2)
Judges shall have a good command of at least one official language of the European PatentOffice.
(3)
Experience with patent litigation which has to be proven for the appointment pursuant toArticle 10(1) of the Agreement may be acquired by training under Article 9(4)(a) ofthis Statute.
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Article 3Appointment of judges
(1)
Judges shall be appointed pursuant to the procedure set out in Article 11 of the Agreement.
(2)
Vacancies shall be publicly advertised and shall indicate the relevant eligibility criteria as setout in Article 2. The Advisory Committee shall give an opinion on candidates' suitability toperform the duties of a judge of the Court. The opinion shall comprise a list of most suitablecandidates. The list shall contain at least twice as many candidates as there are vacancies.Where necessary, the Advisory Committee may recommend that, prior to the decision on theappointment, a candidate judge receive training in patent litigation pursuant to Article 9(4)(a).
(3)
When appointing judges, the Administrative Committee shall ensure the best legal andtechnical expertise and a balanced composition of the Court on as broad a geographical basisas possible among nationals of the Contracting Member States.
(4)
Moved to Art 3a
(5)
The Administrative Committee shall appoint as many judges as are needed for the properfunctioning of the Court. The Administrative Committee shall initially appoint the necessarynumber of judges for setting up at least one panel in each of the divisions of the Court of FirstInstance and at least two panels in the Court of Appeal.
(6)
The decision of the Administrative Committee appointing full-time or part-time legallyqualified judges and full-time technically qualified judges shall state the instance of the Courtand/or the division of the Court of First Instance for which each judge is appointed and thefield(s) of technology for which a technically qualified judge is appointed.
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(7)
Part-time technically qualified judges shall be appointed as judges of the Court and shall beincluded in the Pool of Judges on the basis of their specific qualifications and experience.The appointment of these judges to the Court shall ensure that all fields of technology arecovered.
Article 3aJudges' term of office
1.
Judges shall be appointed for a term of six years, beginning on the date laid down in theinstrument of appointment. They may be re-appointed.
2.
In the absence of any provision regarding the date, the term shall begin on the date ofthe instrument of appointment.
Article 3bAppointment of the members of the Advisory Committee
(1)
Each Contracting Member State shall propose a member of the Advisory Committee whofulfils the requirements set out in Article 9c, paragraph 2, of the Agreement.
(2)
The members of the Advisory Committee shall be appointed by the AdministrativeCommittee acting by common accord.
Article 4Oath
Before taking up their duties judges shall, in open court, take an oath to perform their dutiesimpartially and conscientiously and to preserve the secrecy of the deliberations of the Court.
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Article 5Impartiality
(1)
Immediately after taking their oath, judges shall sign a declaration by which they solemnlyundertake that, both during and after their term of office, they shall respect the obligationsarising therefrom, in particular the duty to behave with integrity and discretion as regardsthe acceptance, after they have ceased to hold office, of certain appointments or benefits.
(2)
Judges may not take part in the proceedings of a case in which they:
(a)
have taken part as adviser;
(b)
have been a party or have acted for one of the parties;
(c)
have been called upon to pronounce as a member of a court, tribunal, board of appeal,arbitration or mediation panel, a commission of inquiry or in any other capacity;
(d)
have a personal or financial interest in the case or in relation to one of the parties; or
(e)
are related to one of the parties or the representatives of the parties by family ties.
(3)
If, for some special reason, a judge considers that he or she should not take part in thejudgement or examination of a particular case, that judge shall so inform the President of theCourt of Appeal accordingly or, in the case of judges of the Court of First Instance, thePresident of the Court of First Instance. If, for some special reason, the President of the Courtof Appeal or, in the case of judges of the Court of First Instance, the President of the Court ofFirst Instance considers that a judge should not sit or make submissions in a particular case,the President of the Court of Appeal or the President of the Court of First Instance shalljustify this in writing and notify the judge concerned accordingly.
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(4)
Any party to an action may object to a judge taking part in the proceedings on any of thegrounds listed in paragraph 2 or where the judge is suspected, with good reason, of partiality.
(5)
Any difficulty arising as to the application of this Article shall be settled by decision ofthe Presidium, in accordance with the Rules of Procedure. The judge concerned shall be heardbut shall not take part in the deliberations.
Article 6Immunity of judges
(1)
The judges shall be immune from legal proceedings. After they have ceased to hold office,they shall continue to enjoy immunity in respect of acts performed by them in relation to theirofficial capacity.
(2)
The Presidium may waive the immunity.
(3)
Where immunity has been waived and criminal proceedings are instituted against a judge, thatjudge shall be tried, in any of the Contracting Member States, only by the court competent tojudge the members of the highest national judiciary.
(4)
The Protocol on the privileges and immunities of the European Union shall apply to thejudges of the Court, without prejudice to the provisions relating to immunity from legalproceedings of judges which are set out in this Statute.
Article 7End of duties
(1)
Apart from replacement after expiry of a judge's term pursuant to Article 3a, or death, theduties of a judge shall end when that judge resigns.
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(2)
Where a judge resigns, the letter of resignation shall be addressed to the President of the Courtof Appeal or, in the case of judges of the Court of First Instance, the President of the Court ofFirst Instance for transmission to the Chairman of the Administrative Committee.
(3)
Save where Article 8 applies, a judge shall continue to hold office until that judge's successortakes up his or her duties.
(4)
Any vacancy shall by filled by the appointment of a new judge for the remainder of his or herpredecessor's term.
Article 8Removal from office
(1)
A judge may be deprived of his of her office or of other benefits in its stead only if thePresidium decides that that judge no longer fulfils the requisite conditions or meets theobligations arising from his or her office. The judge concerned shall be heard but shall nottake part in the deliberations.
(2)
The Registrar of the Court shall communicate this decision to the Chairman ofthe Administrative Committee.
(3)
In the case of a decision depriving a judge of his or her office, a vacancy shall arise upon thislatter notification.
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Article 9Training
(1)
Appropriate and regular training of judges shall be provided for within the training frameworkset up under Article 14 of the Agreement. The Presidium shall adopt Training Regulationsensuring the implementation and overall coherence of the training framework.
(2)
The training framework shall provide a platform for the exchange of expertise and a forum fordiscussion, in particular by:
(a)
organising courses, conferences, seminars, workshops and symposia;
(b)
cooperating with international organisations and education institutes in the field ofintellectual property; and
(c)
promoting and supporting further vocational training.
(3)
An annual work programme and training guidelines shall be drawn up, which shall include foreach judge an annual training plan identifying that judge's main training needs in accordancewith the Training Regulations.
(4)
The training framework shall in addition:
(a)
ensure appropriate training for candidate-judges and newly appointed judges ofthe Court;
(b)
support projects aimed at facilitating cooperation between representatives, patentattorneys and the Court.
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Article 9aRemuneration
The Administrative Committee shall set the remuneration of the President of the Court of Appeal,the President of the Court of First Instance, the judges, the Registrar, the Deputy-Registrar andthe staff.
CHAPTER II – ORGA ISATIO AL PROVISIO S
SECTIO 1 – COMMO PROVISIO S
Article 10President of the Court of Appeal
(1)
The President of the Court of Appeal shall be elected by all judges of the Court of Appeal fora term of three years, from among their number. The President of the Court of Appeal may bere-elected twice.
(2)
The elections of the President of the Court of Appeal shall be by secret ballot. A judgeobtaining an absolute majority shall be elected. If no judge obtains an absolute majority,a second ballot shall be held and the judge obtaining the most votes shall be elected.
(3)
The President of the Court of Appeal shall direct the judicial activities and the administrationof the Court of Appeal and chair the Court of Appeal sitting as a full Court.
(4)
If the office of the President of the Court of Appeal falls vacant before the date of expiry ofhis or her term, a successor shall be elected for the remainder thereof.
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Article 10aPresident of the Court of First Instance
(1)
The President of the Court of First Instance shall be elected by all judges of the Court of FirstInstance who are full-time judges, for a term of three years, from among their number. ThePresident of the Court of First Instance may be re-elected twice.
(1b) The first President of the Court of First Instance shall be a national of the ContractingMember State hosting the seat of the central division.
(2)
The President of the Court of First Instance shall direct the judicial activities andthe administration of the Court of First Instance.
(3)
Article 10(2) and (4), shall by analogy apply to the President of the Court of First Instance.
Article 11Presidium
(1)
The Presidium shall be composed of the President of the Court of Appeal, who shall act aschairperson, the President of the Court of First Instance, two judges of the Court of Appealelected from among their number, three judges of the Court of First Instance who are full-timejudges of the Court elected from among their number, and the Registrar as a non-votingmember.
(2)
The Presidium shall exercise its duties in accordance with this Statute. It may, withoutprejudice to its own responsibility, delegate certain tasks to one of its members.
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(3)
The Presidium shall be responsible for the management of the Court and shall in particular :
(a)
Deleted.
(b)
draw up proposals for the amendment of the Rules of Procedure in accordance withArticle 22 of the Agreement and proposals regarding the Financial Regulations ofthe Court;
(c)
prepare the annual budget, the annual accounts and the annual report of the Court andsubmit them to the Budget Committee;
(d)
establish the guidelines for the training programme for judges and supervisethe implementation thereof;
(e)
take decisions on the appointment and removal of the Registrar and theDeputy-Registrar;
(f)
lay down the rules governing the Registry including the sub-registries;
(g)
give an opinion in accordance with Article 58(5) of the Agreement;
(h)
Deleted.
(4)
Decisions of the Presidium referred to in Articles 5, 6, 8 and 17 shall be taken without theparticipation of the Registrar.
(5)
The Presidium can take valid decisions only when all members are present or dulyrepresented. Decisions shall be taken by a majority of the votes.
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Article 12Staff
(1)
The officials and other servants of the Court shall have the task of assisting the President ofthe Court of Appeal, the President of the Court of First Instance, the judges and the Registrar.They shall be responsible to the Registrar, under the authority of the President of the Court ofAppeal and the President of the Court of First Instance.
(2)
The Administrative Committee shall establish the Staff Regulations of officials and otherservants of the Court.
Article 12aJudicial vacations
(1). After consulting the Presidium, the President of the Court of Appeal shall establish theduration of judicial vacations and the rules on observing official holidays.
(2). During the period of judicial vacations, the functions of the President of the Court of Appealand of the President of the Court of First Instance may be exercised by any judge invited bythe respective President to that effect. In cases of urgency, the President of the Court ofAppeal may convene the judges.
(3). The President of the Court of Appeal or the President of the Court of First Instance may, inproper circumstances, grant leave of absence to respectively judges of the Court of Appeal orjudges of the Court of First Instance.
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SECTIO 2 - THE COURT OF FIRST I STA CE
Article 13Setting up and discontinuance of a local or regional division
(1)
A request from one or more Contracting Member States for the setting up of a local orregional division shall be addressed to the Chairman of the Administrative Committee. It shallindicate the seat of the local or regional division.
(2)
The decision of the Administrative Committee setting up a local or regional division shallindicate the number of judges for the division concerned and shall be public.
(3)
The Administrative Committee shall decide to discontinue a local or regional division atthe request of the Contracting Member State hosting the local division or the ContractingMember States participating in the regional division. The decision to discontinue a local orregional division shall state the date after which no new cases may be brought beforethe division and the date on which the division will cease to exist.
(4)
As from the date on which a local or regional division ceases to exist, the judges assigned tothat local or regional division shall be assigned to the central division, and cases still pendingbefore that local or regional division together with the sub-registry and all of itsdocumentation shall be transferred to the central division.
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Article 14Panels
(1)
The allocation of judges and the assignment of cases within a division to its panels shall begoverned by the Rules of Procedure. One judge of the panel shall be designated asthe presiding judge, in accordance with the Rules of Procedure.
(2)
The panel may delegate, in accordance with the Rules of Procedure, certain functions to oneor more of its judges.
(2a) A standing judge for each division to hear urgent cases may be designated in accordance withthe Rules of Procedure.
(3)
In cases where a single judge in accordance with Article 6, paragraph 7, of the Agreement, ora standing judge, in accordance with paragraph 2a of this Article, hears a case that judge shallcarry out all functions of a panel.
(4)
One judge of the panel shall act as Rapporteur, in accordance with the Rules of Procedure.
Article 15Pool of Judges
(1)
A list with the names of the judges included in the Pool of Judges shall be drawn up bythe Registrar. In relation to each judge, the list shall at least indicate the linguistic skills, thefield of technology and experience of, as well as the cases previously handled by, that judge.
(2)
A request addressed to the President of the Court of First Instance to assign a judge fromthe Pool of Judges shall indicate, in particular, the subject matter of the case, the officiallanguage of the European Patent Office used by the judges of the panel, the language ofthe proceedings and the field of technology required.
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SECTIO 3 – THE COURT OF APPEAL
Article 16Panels
(1)
The allocation of judges and the assignment of cases to panels shall be governed by the Rulesof Procedure. One judge of the panel shall be appointed as the presiding judge, in accordancewith the Rules of Procedure.
(2)
When a case is of exceptional importance, and in particular when the decision may affectthe unity and consistency of the case law of the Court, the Court of Appeal may decide, on thebasis of a proposal from the presiding judge, to refer the case to the full Court.
(3)
The panel may delegate, in accordance with the Rules of Procedure, certain functions to oneor more of its judges.
(4)
One judge of the panel shall act as Rapporteur, in accordance with the Rules of Procedure.
SECTIO 4 – THE REGISTRY
Article 17Appointment and removal from office of the Registrar
(1)
The Presidium shall appoint the Registrar of the Court for a term of six years. The Registrarmay be re-appointed.
(2)
Two weeks before the date fixed for appointing the Registrar, the President of the Court ofAppeal shall inform the Presidium of the applications which have been submitted for the post.
(3)
Before taking up his or her duties, the Registrar shall take oath before the Presidium toperform the duties of the Registrar impartially and conscientiously.
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(4)
The Registrar may be removed from office only if the Registrar no longer meets theobligations arising from his or her office. The Presidium shall take its decision after havingheard the Registrar.
(5)
If the office of the Registrar falls vacant before the date of expiry of the term thereof,the Presidium shall appoint a new Registrar for a term of six years.
(6)
If the Registrar is absent or prevented from attending or where such post is vacant, thePresident of the Court of Appeal after having consulted the Presidium shall designate amember of the staff of the Court to carry out the duties of the Registrar.
Article 18Duties of the Registrar
(1)
The Registrar shall assist the Court, the President of the Court of Appeal, the President ofthe Court of First Instance and the judges in the performance of their functions. The Registrarshall be responsible for the organisation and activities of the Registry under the authority ofthe President of the Court of Appeal.
(2)
The Registrar shall in particular be responsible for:
(a)
keeping the registry which shall include records of all cases before the Court;
(b)
keeping and administering lists drawn up in accordance with Articles 13, 28(3) and34b(2) of the Agreement;
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(c)
keeping and publishing a list of notifications and withdrawals of opt-outs in accordancewith Article 58 of the Agreement;
(d)
publishing the decisions of the Court, subject to the protection of confidentialinformation;
(e)
publishing annual reports with statistical data; and
(f) ensuring that the information on opt-outs in accordance with Article 58 of the Agreementis notified to the European Patent Office.
Article 19Keeping of the registry
(1)
Detailed rules for keeping the registry of the Court shall be prescribed in the Rules governingthe Registry, adopted by the Presidium.
(2)
The rules on access to documents of the Registry shall be provided for in the Rules ofProcedure.
Article 20Sub-registries and Deputy-Registrar
(1)
A Deputy-Registrar shall be appointed for a term of six years by the Presidium. The Deputy-Registrar may be re-appointed.
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(2)
Article 17, paragraphs 2 to 6, shall apply by analogy.
(3)
The Deputy-Registrar shall be responsible for the organisation and activities of sub-registriesunder the authority of the Registrar and the President of the Court of First Instance. The dutiesof the Deputy-Registrar shall in particular include:
(a)
keeping records of all cases before the Court of First Instance;
(b)
notifying every case before the Court of First Instance to the Registry.
(3) The Deputy-Registrar shall also provide administrative and secretarial assistance to thedivisions of the Court of First Instance.
CHAPTER III – FI A CIAL PROVISIO SArticle 22Budget
(1)
The budget shall be adopted by the Budget Committee on a proposal from the Presidium. Itshall be drawn up in accordance with the generally accepted accounting principles laid downin the Financial Regulations, established in accordance with Article 30 of this Statute.
(2)
Within the budget, the Presidium may, in accordance with the Financial Regulations, transferfunds between the various headings or subheadings.
(3)
The Registrar shall be responsible for the implementation of the budget in accordance withthe Financial Regulations.
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(4)
The Registrar shall annually make a statement on the accounts of the preceding financial yearrelating to the implementation of the budget which shall be approved by the Presidium.
Article 23Authorisation for expenditure
(1)
The expenditure entered in the budget shall be authorised for the duration of one accountingperiod unless the Financial Regulations provide otherwise.
(2)
In accordance with the Financial Regulations, any appropriations, other than those relating tostaff costs, which are unexpended at the end of the accounting period may be carried forward,but not beyond the end of the following accounting period.
(3)
Appropriations shall be set out under different headings according to type and purpose ofthe expenditure, and subdivided, to the extent necessary, in accordance with the FinancialRegulations.
Article 24Appropriations for unforeseeable expenditure
(1)
The budget of the Court may include appropriations for unforeseeable expenditure.
(2)
The employment of these appropriations by the Court shall be subject to the prior approval ofthe Budget Committee.
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Article 25Accounting period
The accounting period shall commence on 1 January and end on 31 December.
Article 26Preparation of the budget
The Presidium shall submit the draft budget of the Court to the Budget Committee no later thanthe date prescribed in the Financial Regulations.
Article 27Provisional budget
(1)
If, at the beginning of the accounting period, the budget has not been adopted by the BudgetCommittee, expenditure may be effected on a monthly basis per heading or other division ofthe budget, in accordance with the Financial Regulations, up to one-twelfth of the budgetappropriations for the preceding accounting period, provided that the appropriations thusmade available to the Presidium do not exceed one-twelfth of those provided for in the draftbudget.
(2)
The Budget Committee may, subject to the observance of the other provisions laid down inparagraph 1, authorise expenditure in excess of one-twelfth of the budget appropriations forthe preceding accounting period.
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Article 28Auditing of accounts
(1)
The annual financial statements of the Court shall be examined by independent auditors.The auditors shall be appointed and if necessary dismissed by the Budget Committee.
(2)
The audit, which shall be based on professional auditing standards and shall take place, ifnecessary, in situ, shall ascertain that the budget has been implemented in a lawful and propermanner and that the financial administration of the Court has been conducted in accordancewith the principles of economy and sound financial management. The auditors shall draw upa report after the end of each accounting period containing a signed audit opinion.
(3)
The Presidium shall submit to the Budget Committee the annual financial statements ofthe Court and the annual budget implementation statement for the preceding accountingperiod, together with the auditors’ report.
(4)
The Budget Committee shall approve the annual accounts together with the auditors’ reportand shall discharge the Presidium in respect of the implementation of the budget.
Article 30Financial Regulations
(-1) The Financial Regulations shall be adopted by the Administrative Committee. They shall beamended by the Administrative Committee on a proposal from the Court.
(1)
The Financial Regulations shall lay down in particular:
(a)
arrangements relating to the establishment and implementation of the budget and forthe rendering and auditing of accounts;
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(b)
the method and procedure whereby the payments and contributions, including the initialfinancial contributions provided for in Article 19 of the Agreement are to be madeavailable to the Court;
(c)
the rules concerning the responsibilities of authorising and accounting officers andthe arrangements for their supervision; and
(d)
the generally accepted accounting principles on which the budget and the annualfinancial statements are to be based.
(2)Moved up as paragraph -1
Articles 31 and 32Deleted.
CHAPTER IV – PROCEDURAL PROVISIO S
Article 33Secrecy of deliberations
The deliberations of the Court shall be and shall remain secret.
Article 34Decisions
(1)
When a panel sits in composition of an even number of judges, decisions of the Court shall betaken by a majority of the panel. In case of equal vote, the vote of the presiding judge shallprevail.
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(2)
In the event of one of the judges of a panel being prevented from attending, a judge fromanother panel may be called upon to sit in accordance with the Rules of Procedure.
(3)
In cases where this Statute provides that the Court of Appeal shall take a decision sitting asa full court, such decision shall be valid only if it is taken by at least 3/4 of the judgescomprising the full court.
(4)
Decisions of the Court shall contain the names of the judges deciding the case.
(5)
Decisions shall be signed by the judges deciding the case, by the Registrar for decisions ofthe Court of Appeal, and by the Deputy-Registrar for decisions of the Court of First Instance.They shall be read in open court.
Article 35Dissenting opinions
A dissenting opinion expressed separately by a judge of a panel in accordance with Article 51 of theAgreement shall be reasoned, given in writing and shall be signed by the judge expressing thisopinion.
Article 36Decision by default
(1)
At the request of a party to an action, a decision by default may be given in accordance withthe Rules of Procedure, where the other party, after having been served with a documentinstituting proceedings or with an equivalent document, fails to file written submissions indefence or fails to appear at the oral hearing. An objection may be lodged against thatdecision within one month of it being notified to the party against which the default decisionhas been given.
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(2)
The objection shall not have the effect of staying enforcement of the decision by defaultunless the Court decides otherwise.
Article 37Questions referred to the Court of Justice of the European Union
(1)
The procedures established by the Court of Justice of the European Union for referrals forpreliminary rulings within the European Union shall apply.
(2)
Whenever the Court of First Instance or the Court of Appeal has decided to refer to the Courtof Justice of the European Union a question of interpretation of the Treaty on the Functioningof the European Union or of the Treaty on European Union or a question on the validity orinterpretation of acts of the institutions of the European Union, it shall stay its proceedings.
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A
EX II TO THE A
EX
Distribution of cases within the central division14)
LO DO Section
PARIS Seat
MU ICH Section
President's Office(A) Human necessities(B) Performing operations,transporting(F) Mechanical engineering,lighting, heating, weapons,blasting
(C) Chemistry, metallurgy
(D) Textiles, paper
(E) Fixed constructions(G) Physics
(H) Electricity
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The classification into 8 sections (A to H) is based on the International Patent Classificationof the World Intellectual Property Organisation (http://www.wipo.int/classifications/ipc/en).LK/loDG G 3B91
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