What should Member States of the European Union do?: What should Member States of the European Union do before a European Patent Court and a Community Patent Court have been established?

In accordance with the Consolidated version of the Treaty on the Functioning of the European Union (30.3.2010 Official Journal of the European Union C 83/47), Article 67 (4), the Union shall facilitate access to justice. Further according to Article 81 (2e and 2f) the Union shall adopt measures aimed at ensuring effective access to justice and the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States of the European Union. Compatibility of the rules on civil procedure applicable in the United Kingdom and the

Netherlands

(and in other Member States) as to patent ligation should be realised by regulating in the national patent laws the full right of representation of patent attorneys before national courts. Thus patent attorneys should be entitled to represent clients before the courts without having to involve an attorney-at-law. The requirement to involve an attorney-at-law in patent litigation proceedings before national courts in the European Union creates an insurmountable financial hurdle for many small and medium sized companies. In fact the cost of patent litigation is doubled or even more than doubled. Hence access to justice is not facilitated but rather hampered by national law. Furthermore national laws of Member States should be rendered compatible with rules on civil procedure applicable in the United Kingdom where patent attorneys are entitled to represent their clients before the Patents County Court in London. When they have a litigator’s certificate these patent attorneys can also represent clients before the High Court (ref.: http://representationrightsofpatentattorney.blogspot.com/ ). The ECJ has declared that Treaty provisions that confer clear, precise and unconditional rights on individuals have both vertical and horizontal direct effects. The EU law will prevail. Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR1. ; Costa v ENEL (Case 6/64) [1964] ECR 585; Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle fur Getreide und Futtermittel (Case 11/70) [1970] ECR 1125 (ref.: http://labspace.open.ac.uk/mod/resource/view.php?id=376467 ). Therefore, in the interest of small and medium sized companies enforcing their patent rights or defending themselves against patent infringement actions of competitors, patent attorneys in other member states should have litigation rights no less than their colleagues in the United Kingdom enjoy.

The Hague, 17th January 2012