Tuesday 27 May 2008

Will you be able to represent clients in European pat lit?

The EU Council's Document 9124/08, addressing the Working Party on Intellectual Property (Patents), is the grandly-titled Draft Agreement on the European Union Patent Judiciary. This document, which was agreed last week, is 49 pages in length and tackles, among other issues, professional representation before the proposed Community Patent court. It states:
"Article 28: Representation

(1) The parties shall be represented by lawyers authorized to practise before a court of a Contracting Party who may be assisted by a European Patent Attorney, who is a national of a Contracting Party entitled to act as professional representative before the European Patent Office (hereafter: European Patent Attorney), and/or by patent attorneys with proven patent litigation experience.
(2) Notwithstanding paragraph 1, European Patent Attorneys and patent attorneys with proven patent litigation experience who are in possession of a European Union Litigation Certificate may represent the parties in actions for revocation of a patent before the central division.
(3) Representatives of the parties and their assistants shall enjoy the rights and immunities necessary to the independent exercise of their duties.
(4) Representatives of the parties and their assistants shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know".
I can foresee problems here for sole and/or occasional practitioners in the field of patent litigation. Thoughts, please?


  1. I wonder if a US attorney with proven US patent litigation experience might be allowed to represent in such cases.

    Also, I do not know what "assisted by" means. Cannot a lawyer take advice from anybody he/she chooses? Is it merely a question of who may utter themselves in court?

  2. I wonder where/how one obtains a European Union Litigation Certificate, or whether anyone will have had opportunity to get one before the Court comes into existence?

  3. "European Patent Attorney who is a national of a Contracting Party", its a bit stricter than article 134, as long time residents are allowed onto the EP register even if they are foreign nationals. I wonder if the same restriction applies to lawyers.

    Is there a chance that the legislation will put a stop to Oppositions at the EPO, i.e. only making it possible to challenge validity at the European Patent Court? That would not be good news for patent attorneys.

  4. This seems to be a pretty fair standard. It will clearly include patent attorneys with litigator certificates but it doesn't give carte blanche to every patent agent, which some wanted. Litigation is so me think that requires specific training I think the public is entitled to choose from those who have undertaken it. However, it is good to see that the European patent attorneys granted some status within the system. I suspect some UK role in this compromise as what it looks like is the British model and the EPA is required to have a 'leader'.
    I wish the working party every success in their endeavours

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