Although European Patent Attorneys deal with patent infringement issues as professional legal counsels to their clients they still do not enjoy full representation rights or enjoy no rights of representation at all before the national courts in Europe .
Exceptions are e.g. Germany , England and the Netherlands
In England UK Patent Agents are entitled to represent 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 (http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/courts/patents-court/patents-court-guide.pdf. )
Ref.: http://www.cipa.org.uk/pages/advice-patent
“Patent Attorney Litigators
Ref.: http://www.ipreg.org.uk/document_file/file/Consultation_on_litigators_rights.pdf
A Dutch patent attorney has pleading rights before the District Court of The Hague, the Appeal Court of The Hague and the Supreme Court, but has still to involve an attorney-at-law. The Dutch patent attorney acts before these Courts as a co-counsel.
Ref.: http://www.cipa.org.uk/pages/advice-patent
“Patent Attorney Litigators
All patent attorneys have the right both to conduct litigation (i.e. to run cases) and the right of audience in the Patents County Court and on appeal from the Patent Office in the Patents Court, which is part of the High Court. In 1999 the Institute was given authorised body status to grant Litigator Certificates to suitably qualified and experienced members. These give the right to conduct litigation in the High Court, including the Patents Court
Ref.: http://www.ipreg.org.uk/document_file/file/Consultation_on_litigators_rights.pdf
A Dutch patent attorney has pleading rights before the District Court of The Hague, the Appeal Court of The Hague and the Supreme Court, but has still to involve an attorney-at-law. The Dutch patent attorney acts before these Courts as a co-counsel.
The federation of companies active in the IP field in the European Union has applauded the proposal to grant litigation rights to European Patent Attorneys with a ‘litigator’s certificate or equivalent training’ before a future European and Community Patent Court. Main reason for the enthusiasm of these companies for the entitlement of European Patent Attorneys to represent them in Court is the opportunity to save on ligation costs as there will be no requirement to also involve an attorney-at-law. This would mean that litigation costs may in many cases be halved or more than halved as only the fee of the European Patent Attorney would have to be paid. European Patent Attorneys (EPAs) represent ‘the largest body of technically qualified legal persons in Europe with a deep understanding of both patent law and science, [Ref.:epi Institute of Professional Representatives before the European Patent Office http://www.rzecznikpatentowy.org.pl/aktualnosci/111214/2011-12-14_epi_zalacznik_EN-Representation-advocacy_paper_final_2011_10_31prt_2.pdf ]
EPAs and specialist patent lawyers have overlapping and in some instances identical skills’ Ref.: http://www.ipfederation.com/document_download.php?id=579
EPAs and specialist patent lawyers have overlapping and in some instances identical skills’ Ref.: http://www.ipfederation.com/document_download.php?id=579
What should Member States of the European Union do before a European Patent Court and a Community Patent Court have been established?
As there are in the European Union only a limited number of IP lawyers with an academic degree in science and/or technology it takes quite some time for any IP lawyer without such a degree to get to understand the technical features of a patent infringement case. The patent attorney, as co-counsel, has to educate him or her in these technical features that will in general prove to be decisive for the outcome of patent litigation proceedings in Court. Thus nowadays clients face doubling of litigation costs as under national regimes the involvement of a lawyer is still required when a client has to enforce his patent rights or has to defend himself against an infringement suit.
Member States should take the demands of businesses for a reform of the representation rights of patent attorneys seriously. These companies depend on the governments and parliaments of the Member States for amendment of the national patent laws as to the representation rights of patent attorneys before the national courts. As in the United Kingdom patent attorneys should have representation rights before the national Courts handling patent litigation. To be entitled to represent clients before appeal courts a litigator's certificate should be required or equivalent training, i.e. the CEIPI - epi Diploma Course on Patent Litigation in Europe organised by the University of Strasbourg. Entitlement of patent attorneys to full rights of representation before national courts would in my view comply with the Treaty on the Functioning of the European Union as to the facilitation by the Union of access to justice. 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.
In theNetherlands
The Hague
In the