Opinion of the Advocate General — ECLI:EU:C:2004:539
Date: 2004-09-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Intellectual, industrial and commercial property;Brussels Convention of 27 September 1968 - Jurisdiction;Patents
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Convention on Jurisdiction and the Enforcement of Judgments – Exclusive jurisdiction – Proceedings concerned with the registration or validity of patents (Convention of 27 September 1968, Art. 16(4)) Article 16(4) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as last amended by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, is to be interpreted as meaning that the rule of exclusive jurisdiction laid down therein concerns all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection. First, to allow a court seised of the main action relating to a patent, such as an action for infringement or for a declaration that there has been no infringement, to establish, indirectly, the invalidity of the patent at issue would undermine the binding nature of the rule of jurisdiction laid down in that article and would circumvent its mandatory nature. Second, the possibility which this offers would have the effect of multiplying the heads of jurisdiction and would be liable to undermine the predictability of the rules of jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. Finally, to allow, within the scheme of the Convention, decisions in which courts other than those of a State in which a particular patent is issued rule indirectly on the validity of that patent would also multiply the risk of conflicting decisions which the Convention seeks specifically to avoid. (see paras 26-29, 31, operative part)