Source: EURLEX
Language: en
Format: md

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| 20.6.2013 | EN | Official Journal of the European Union | C 175/1 |

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AGREEMENT

on a Unified Patent Court

2013/C 175/01

THE CONTRACTING MEMBER STATES,

CONSIDERING that cooperation amongst the Member States of the European Union in the field of patents contributes significantly to the integration process in Europe, in particular to the establishment of an internal market within the European Union characterised by the free movement of goods and services and the creation of a system ensuring that competition in the internal market is not distorted;

CONSIDERING that the fragmented market for patents and the significant variations between national court systems are detrimental for innovation, in particular for small and medium-sized enterprises which have difficulties to enforce their patents and to defend themselves against unfounded claims and claims relating to patents which should be revoked;

CONSIDERING that the European Patent Convention (‘EPC’) which has been ratified by all Member States of the European Union provides for a single procedure for granting European patents by the European Patent Office;

CONSIDERING that by virtue of Regulation (EU) No 1257/2012[(1)](#ntr1-C_2013175EN.01000101-E0001), patent proprietors can request unitary effect of their European patents so as to obtain unitary patent protection in the Member States of the European Union participating in the enhanced cooperation;

WISHING to improve the enforcement of patents and the defence against unfounded claims and patents which should be revoked and to enhance legal certainty by setting up a Unified Patent Court for litigation relating to the infringement and validity of patents;

CONSIDERING that the Unified Patent Court should be devised to ensure expeditious and high quality decisions, striking a fair balance between the interests of right holders and other parties and taking into account the need for proportionality and flexibility;

CONSIDERING that the Unified Patent Court should be a court common to the Contracting Member States and thus part of their judicial system, with exclusive competence in respect of European patents with unitary effect and European patents granted under the provisions of the EPC;

CONSIDERING that the Court of Justice of the European Union is to ensure the uniformity of the Union legal order and the primacy of European Union law;

RECALLING the obligations of the Contracting Member States under the Treaty on European 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 and the obligation to ensure through the Unified Patent Court the full application of, and respect for, Union law in their respective territories and the judicial protection of an individual's rights under that law;

CONSIDERING that, as any national court, the Unified Patent Court must respect and apply Union law and, in collaboration with the Court of Justice of the European Union as guardian of Union law, ensure its correct application and uniform interpretation; the Unified Patent Court must in particular cooperate with the Court of Justice of the European Union in properly interpreting Union law by relying on the latter's case law and by requesting preliminary rulings in accordance with Article 267 TFEU;

CONSIDERING that the Contracting Member States should, in line with the case law of the Court of Justice of the European Union on non-contractual liability, be liable for damages caused by infringements of Union law by the Unified Patent Court, including the failure to request preliminary rulings from the Court of Justice of the European Union;

CONSIDERING that infringements of Union law by the Unified Patent Court, including the failure to request preliminary rulings from the Court of Justice of the European Union, are directly attributable to the Contracting Member States and infringement proceedings can therefore be brought under Article 258, 259 and 260 TFEU against any Contracting Member State to ensure the respect of the primacy and proper application of Union law;

RECALLING the primacy of Union law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as developed by the Court of Justice of the European Union, and in particular the right to an effective remedy before a tribunal and a fair and public hearing within a reasonable time by an independent and impartial tribunal, the case law of the Court of Justice of the European Union and secondary Union law;

CONSIDERING that this Agreement should be open to accession by any Member State of the European Union; Member States which have decided not to participate in the enhanced cooperation in the area of the creation of unitary patent protection may participate in this Agreement in respect of European patents granted for their respective territory;

CONSIDERING that this Agreement should enter into force on 1 January 2014 or on the first day of the fourth month after the 13th deposit, provided that the Contracting Member States that will have deposited their instruments of ratification or accession include the three States in which the highest number of European patents was in force in the year preceding the year in which the signature of the Agreement takes place, or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012[(2)](#ntr2-C_2013175EN.01000101-E0002) concerning its relationship with this Agreement, whichever is the latest,

HAVE AGREED AS FOLLOWS:

PART I

GENERAL AND INSTITUTIONAL PROVISIONS

CHAPTER I

General provisions

Article 1

Unified Patent Court

A Unified Patent Court for the settlement of disputes relating to European patents and European patents with unitary effect is hereby established.

The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.

Article 2

Definitions

For the purposes of this Agreement:

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| (a) | ‘Court’ means the Unified Patent Court created by this Agreement. |

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| (b) | ‘Member State’ means a Member State of the European Union. |

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| (c) | ‘Contracting Member State’ means a Member State party to this Agreement. |

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| (d) | ‘EPC’ means the Convention on the Grant of European Patents of 5 October 1973, including any subsequent amendments. |

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| (e) | ‘European patent’ means a patent granted under the provisions of the EPC, which does not benefit from unitary effect by virtue of Regulation (EU) No 1257/2012. |

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| (f) | ‘European patent with unitary effect’ means a patent granted under the provisions of the EPC which benefits from unitary effect by virtue of Regulation (EU) No 1257/2012. |

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| (g) | ‘Patent’ means a European patent and/or a European patent with unitary effect. |

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| (h) | ‘Supplementary protection certificate’ means a supplementary protection certificate granted under Regulation (EC) No 469/2009[(3)](#ntr3-C_2013175EN.01000101-E0003) or under Regulation (EC) No 1610/96[(4)](#ntr4-C_2013175EN.01000101-E0004). |

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| (i) | ‘Statute’ means the Statute of the Court as set out in Annex I, which shall be an integral part of this Agreement. |

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| (j) | ‘Rules of Procedure’ means the Rules of Procedure of the Court, as established in accordance with Article 41. |

Article 3

Scope of application

This Agreement shall apply to any:

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| (a) | European patent with unitary effect; |

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| (b) | supplementary protection certificate issued for a product protected by a patent; |

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| (c) | European patent which has not yet lapsed at the date of entry into force of this Agreement or was granted after that date, without prejudice to Article 83; and |

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| (d) | European patent application which is pending at the date of entry into force of this Agreement or which is filed after that date, without prejudice to Article 83. |

Article 4

Legal status

1.   The Court shall have legal personality in each Contracting Member State and shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State.

2.   The Court shall be represented by the President of the Court of Appeal who shall be elected in accordance with the Statute.

Article 5

Liability

1.   The contractual liability of the Court shall be governed by the law applicable to the contract in question in accordance with Regulation (EC) No 593/2008[(5)](#ntr5-C_2013175EN.01000101-E0005) (Rome I), where applicable, or failing that in accordance with 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 in the performance of their duties, to the extent that it is not a civil and commercial matter within the meaning of Regulation (EC) No 864/2007[(6)](#ntr6-C_2013175EN.01000101-E0006) (Rome II), shall be governed by the law of the Contracting Member State in which the damage occurred. This provision is without prejudice to the application of Article 22.

3.   The court with jurisdiction to settle disputes under paragraph 2 shall be a court of the Contracting Member State in which the damage occurred.

CHAPTER II

Institutional provisions

Article 6

The 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.

Article 7

The Court of First Instance

1.   The Court of First Instance shall comprise a central division as well as local and regional divisions.

2.   The central division shall have its seat in Paris, with sections in London and Munich. The cases before the central division shall be distributed in accordance with Annex II, which shall form an integral part of this Agreement.

3.   A local division shall be set up in a Contracting Member State upon its request in accordance with the Statute. A Contracting Member State hosting a local division shall designate its seat.

4.   An additional local division shall be set up in a Contracting Member State upon its request for every one hundred patent cases per calendar year that have been commenced in that Contracting Member State during three successive years prior to or subsequent to the date of entry into force of this Agreement. The number of local divisions in one Contracting Member State shall not exceed four.

5.   A regional division shall be set up for two or more Contracting Member States, upon their request in accordance with the Statute. Such Contracting Member States shall designate the seat of the division concerned. The regional division may hear cases in multiple locations.

Article 8

Composition of the panels of the Court of First Instance

1.   Any panel of the Court of First Instance shall have a multinational composition. Without prejudice to paragraph 5 of this Article and to Article 33(3)(a), it shall sit in a composition of three judges.

2.   Any panel of a local division in a Contracting Member State where, during a period of three successive years prior or subsequent to the entry into force of this Agreement, less than fifty patent cases per calendar year on average have been commenced shall sit in a composition of one legally qualified judge who is a national of the Contracting Member State hosting the local division concerned and two legally qualified judges who are not nationals of the Contracting Member State concerned and are allocated from the Pool of Judges in accordance with Article 18(3) on a case by case basis.

3.   Notwithstanding paragraph 2, any panel of a local division in a Contracting Member State where, during a period of three successive years prior or subsequent to the entry into force of this Agreement, fifty or more patent cases per calendar year on average have been commenced, shall sit in a composition of two legally qualified judges who are nationals of the Contracting Member State hosting the local division concerned and one legally qualified judge who is not a national of the Contracting Member State concerned and is allocated from the Pool of Judges in accordance with Article 18(3). Such third judge shall serve at the local division on a long term basis, where this is necessary for the efficient functioning of divisions with a high work load.

4.   Any panel of a regional division shall sit in a composition of two legally qualified judges chosen from a regional list of judges, who shall be nationals of the Contracting Member States concerned, and one legally qualified judge who shall not be a national of the Contracting Member States concerned and who shall be allocated from the Pool of Judges in accordance with Article 18(3).

5.   Upon request by one of the parties, any panel of a local or regional division shall request the President of the Court of First Instance to allocate from the Pool of Judges in accordance with Article 18(3) an additional technically qualified judge with qualifications and experience in 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 this appropriate.

In cases where such a technically qualified judge is allocated, no further technically qualified judge may be allocated under Article 33(3)(a).

6.   Any panel of the central division shall sit in a composition of two legally qualified judges who are nationals of different Contracting Member States and one technically qualified judge allocated from the Pool of Judges in accordance with Article 18(3) with qualifications and experience in the field of technology concerned. However, any panel of the central division dealing with actions under Article 32(1)(i) shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States.

7.   Notwithstanding paragraphs 1 to 6 and in accordance with the Rules of Procedure, parties may agree 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.

Article 9

The Court of Appeal

1.   Any panel of the Court of Appeal shall sit in a multinational composition of five judges. It shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States and two technically qualified judges with qualifications and experience in the field of technology concerned. Those technically qualified judges shall be assigned to the panel by the President of the Court of Appeal from the pool of judges in accordance with Article 18.

2.   Notwithstanding paragraph 1, a panel dealing with actions under Article 32(1)(i) shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States.

3.   Any panel of the Court of Appeal shall be chaired by a legally qualified judge.

4.   The panels of the Court of Appeal shall be set up in accordance with the Statute.

5.   The Court of Appeal shall have its seat in Luxembourg.

Article 10

The Registry

1.   A Registry shall be set up at the seat of the Court of Appeal. It shall be managed by the Registrar and perform the functions assigned to it in accordance with the Statute. Subject to conditions set out in this Agreement and the Rules of Procedure, the register kept by the Registry shall be public.

2.   Sub-registries shall be set up at all divisions of the Court of First Instance.

3.   The Registry shall keep records of all cases before the Court. Upon filing, the sub-registry concerned shall notify every case to the Registry.

4.   The Court shall appoint the Registrar in accordance with Article 22 of the Statute and lay down the rules governing the Registrar's service.

Article 11

Committees

An Administrative Committee, a Budget Committee and an Advisory Committee shall be set up in order to ensure the effective implementation and operation of this Agreement. They shall in particular exercise the duties foreseen by this Agreement and the Statute.

Article 12

The Administrative Committee

1.   The Administrative Committee shall be composed of one representative of each Contracting Member State. The European Commission shall be represented at the meetings of the Administrative Committee as observer.

2.   Each Contracting Member State shall have one vote.

3.   The Administrative Committee shall adopt its decisions by a majority of three quarters of the Contracting Member States represented and voting, except where this Agreement or the 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 term of three years. That term shall be renewable.

Article 13

The Budget Committee

1.   The Budget Committee shall be composed of one representative of each Contracting Member State.

2.   Each Contracting Member State shall have one vote.

3.   The Budget Committee shall take its decisions by a simple majority of the representatives of the Contracting Member States. However, a majority of three-quarters of the representatives of Contracting Member States shall be required for the adoption of the budget.

4.   The Budget Committee shall adopt its rules of procedure.

5.   The Budget Committee shall elect a chairperson from among its members for a term of three years. That term shall be renewable.

Article 14

The Advisory Committee

1.   The Advisory Committee shall:

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| (a) | assist the Administrative Committee in the preparation of the appointment of judges of the Court; |

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| (b) | make proposals to the Presidium referred to in Article 15 of the Statute on the guidelines for the training framework for judges referred to in Article 19; and |

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| (c) | deliver opinions to the Administrative Committee concerning the requirements for qualifications referred to in Article 48(2). |

2.   The Advisory Committee shall comprise patent judges and practitioners in patent law and patent litigation with the highest recognised competence. They shall be appointed, in accordance with the procedure laid down in the Statute, for a term of six years. That term shall be renewable.

3.   The composition of the Advisory Committee shall ensure a broad range of relevant expertise and the representation of each of the Contracting Member States. The members of the Advisory Committee shall be completely independent in the performance of their duties and shall not be bound by any instructions.

4.   The Advisory Committee shall adopt its rules of procedure.

5.   The Advisory Committee shall elect a chairperson from among its members for a term of three years. That term shall be renewable.

CHAPTER III

Judges of the Court

Article 15

Eligibility 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 in the field of patent litigation.

2.   Legally qualified judges shall possess the qualifications required for appointment to judicial offices in a Contracting Member State.

3.   Technically qualified judges shall have a university degree and proven expertise in a field of technology. They shall also have proven knowledge of civil law and procedure relevant in patent litigation.

Article 16

Appointment procedure

1.   The Advisory Committee shall establish a list of the most suitable candidates to be appointed as 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 Court acting by common accord.

3.   The implementing provisions for the appointment of judges are set out in the Statute.

Article 17

Judicial independence and impartiality

1.   The Court, its judges and the Registrar shall enjoy judicial independence. In the performance of 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 of the Court, may not engage in any other occupation, whether gainful or not, unless an exception is granted by the Administrative Committee.

3.   Notwithstanding paragraph 2, the exercise of the office of judges shall not exclude the exercise of other judicial functions at national level.

4.   The exercise of the office of technically qualified judges who are part-time judges of the Court shall not exclude the exercise of other functions provided there is no conflict of interest.

5.   In case of a conflict of interest, the judge concerned shall not take part in proceedings. Rules governing conflicts of interest are set out in the Statute.

Article 18

Pool 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 qualified judges from the Court of First Instance who are full-time or part-time judges of the Court. The Pool of Judges shall include at least one technically qualified judge per field of technology with the relevant qualifications and experience. The technically qualified judges from the Pool of Judges shall also be available to the Court of Appeal.

3.   Where so provided by this Agreement or the Statute, the judges from the Pool of Judges shall be 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 skills and relevant experience. The allocation of judges shall guarantee the same high quality of work and the same high level of legal and technical expertise in all panels of the Court of First Instance.

Article 19

Training framework

1.   A training framework for judges, the details of which are set out in the Statute, shall be set up in order to improve and increase available patent litigation expertise and to ensure a broad geographic distribution of such specific knowledge and experience. The facilities for that framework shall be situated in Budapest.

2.   The training framework shall in particular focus on:

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| (a) | internships in national patent courts or divisions of the Court of First Instance hearing a substantial number of patent litigation cases; |

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| (b) | improvement of linguistic skills; |

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| (c) | technical aspects of patent law; |

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| (d) | the dissemination of knowledge and experience in civil procedure for technically qualified judges; |

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| (e) | the preparation of candidate-judges. |

3.   The training framework shall provide for continuous training. Regular meetings shall be organised between all judges of the Court in order to discuss developments in patent law and to ensure the consistency of the Court's case law.

CHAPTER IV

The primacy of Union law, liability and responsibility of the Contracting Member States

Article 20

Primacy of and respect for Union law

The Court shall apply Union law in its entirety and shall respect its primacy.

Article 21

Requests for preliminary rulings

As a court common to the Contracting Member States and as part of their judicial system, the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court.

Article 22

Liability for damage caused by infringements of Union law

1.   The Contracting Member States are jointly and severally liable for damage resulting from an infringement of Union law by the Court of Appeal, in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law.

2.   An action for such damages shall be brought against the Contracting Member State where the claimant has its residence or principal place of business or, in the absence of residence or principal place of business, place of business, before the competent authority of that Contracting Member State. Where the claimant does not have its residence, or principal place of business or, in the absence of residence or principal place of business, place of business in a Contracting Member State, the claimant may bring such an action against the Contracting Member State where the Court of Appeal has its seat, before the competent authority of that Contracting Member State.

The competent authority shall apply the lex fori, with the exception of its private international law, to all questions not regulated by Union law or by this Agreement. The claimant shall be entitled to obtain the entire amount of damages awarded by the competent authority from the Contracting Member State against which the action was brought.

3.   The Contracting Member State that has paid damages is entitled to obtain proportional contribution, established in accordance with the method laid down in Article 37(3) and (4), from the other Contracting Member States. The detailed rules governing the Contracting Member States' contribution under this paragraph shall be determined by the Administrative Committee.

Article 23

Responsibility 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 Member States collectively.

CHAPTER V

Sources of law and substantive law

Article 24

Sources of law

1.   In full compliance with Article 20, when hearing a case brought before it under this Agreement, the Court shall base its decisions on:

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| (a) | Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012[(7)](#ntr7-C_2013175EN.01000101-E0007); |

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| (b) | this Agreement; |

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| (c) | the EPC; |

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| (d) | other international agreements applicable to patents and binding on all the Contracting Member States; and |

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| (e) | national law. |

2.   To the extent that the Court shall base its decisions on national law, including where relevant the law of non-contracting States, the applicable law shall be determined:

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| (a) | by directly applicable provisions of Union law containing private international law rules, or |

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| (b) | in the absence of directly applicable provisions of Union law or where the latter do not apply, by international instruments containing private international law rules; or |

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| (c) | in the absence of provisions referred to in points (a) and (b), by national provisions on private international law as determined by the Court. |

3.   The law of non-contracting States shall apply when designated by application of the rules referred to in paragraph 2, in particular in relation to Articles 25 to 28, 54, 55, 64, 68 and 72.

Article 25

Right 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's consent from the following:

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| (a) | making, offering, placing on the market or using a product which is the subject-matter of the patent, or importing or storing the product for those purposes; |

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| (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 of the patent proprietor, offering the process for use within the territory of the Contracting Member States in which that patent has effect; |

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| (c) | offering, placing on the market, using, or importing or storing for those purposes a product obtained directly by a process which is the subject-matter of the patent. |

Article 26

Right 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 the proprietor’s consent from supplying or offering to supply, within the territory of the Contracting Member States in which that patent has effect, any person other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, 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 where the third party induces the person supplied to perform any of the acts prohibited by Article 25.

3.   Persons performing the acts referred to in Article 27(a) to (e) shall not be considered to be parties entitled to exploit the invention within the meaning of paragraph 1.

Article 27

Limitations of the effects of a patent

The rights conferred by a patent shall not extend to any of the following:

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| (a) | acts done privately and for non-commercial purposes; |

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| (b) | acts done for experimental purposes relating to the subject-matter of the patented invention; |

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| (c) | the use of biological material for the purpose of breeding, or discovering and developing other plant varieties; |

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| (d) | the acts allowed pursuant to Article 13(6) of Directive 2001/82/EC[(8)](#ntr8-C_2013175EN.01000101-E0008) or Article 10(6) of Directive 2001/83/EC[(9)](#ntr9-C_2013175EN.01000101-E0009) in respect of any patent covering the product within the meaning of either of those Directives; |

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| (e) | the extemporaneous preparation by a pharmacy, for individual cases, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared; |

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| (f) | the use of the patented invention on board vessels of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, in the body of such vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of a Contracting Member State in which that patent has effect, provided that the invention is used there exclusively for the needs of the vessel; |

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| (g) | the use of the patented invention in the construction or operation of aircraft or land vehicles or other means of transport of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, or of accessories to such aircraft or land vehicles, when these temporarily or accidentally enter the territory of a Contracting Member State in which that patent has effect; |

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| (h) | the acts specified in Article 27 of the Convention on International Civil Aviation of 7 December 1944[(10)](#ntr10-C_2013175EN.01000101-E0010), where these acts concern the aircraft of a country party to that Convention other than a Contracting Member State in which that patent has effect; |

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| (i) | the use by a farmer of the product of his harvest for propagation or multiplication by him on his own holding, provided that the plant propagating material was sold or otherwise commercialised to the farmer by or with the consent of the patent proprietor for agricultural use. The extent and the conditions for this use correspond to those under Article 14 of Regulation (EC) No 2100/94[(11)](#ntr11-C_2013175EN.01000101-E0011); |

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| (j) | the use by a farmer of protected livestock for an agricultural purpose, provided that the breeding stock or other animal reproductive material were sold or otherwise commercialised to the farmer by or with the consent of the patent proprietor. Such use includes making the animal or other animal reproductive material available for the purposes of pursuing the farmer's agricultural activity, but not the sale thereof within the framework of, or for the purpose of, a commercial reproductive activity; |

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| (k) | the acts and the use of the obtained information as allowed under Articles 5 and 6 of Directive 2009/24/EC[(12)](#ntr12-C_2013175EN.01000101-E0012), in particular, by its provisions on decompilation and interoperability; and |

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| (l) | the acts allowed pursuant to Article 10 of Directive 98/44/EC[(13)](#ntr13-C_2013175EN.01000101-E0013). |

Article 28

Right 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 personal possession of that invention, shall enjoy, in that Contracting Member State, the same rights in respect of a patent for the same invention.

Article 29

Exhaustion of the rights conferred by a European patent

The rights conferred by a European patent shall not extend to acts concerning a product covered by that patent after that product has been placed on the market in the European Union by, or with the consent of, the patent proprietor, unless there are legitimate grounds for the patent proprietor to oppose further commercialisation of the product.

Article 30

Effects of supplementary protection certificates

A supplementary protection certificate shall confer the same rights as conferred by the patent and shall be subject to the same limitations and the same obligations.

CHAPTER VI

International jurisdiction and competence

Article 31

International jurisdiction

The international jurisdiction of the Court shall be established in accordance with Regulation (EU) No 1215/2012 or, where applicable, on the basis of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention)[(14)](#ntr14-C_2013175EN.01000101-E0014).

Article 32

Competence of the Court

1.   The Court shall have exclusive competence in respect of:

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| (a) | actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences; |

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| (b) | actions for declarations of non-infringement of patents and supplementary protection certificates; |

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| (c) | actions for provisional and protective measures and injunctions; |

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| --- | --- |
| (d) | actions for revocation of patents and for declaration of invalidity of supplementary protection certificates; |

|  |  |
| --- | --- |
| (e) | counterclaims for revocation of patents and for declaration of invalidity of supplementary protection certificates; |

|  |  |
| --- | --- |
| (f) | actions for damages or compensation derived from the provisional protection conferred by a published European patent application; |

|  |  |
| --- | --- |
| (g) | actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention; |

|  |  |
| --- | --- |
| (h) | actions for compensation for licences on the basis of Article 8 of Regulation (EU) No 1257/2012; and |

|  |  |
| --- | --- |
| (i) | actions concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012. |

2.   The national courts of the Contracting Member States shall remain competent for actions relating to patents and supplementary protection certificates which do not come within the exclusive competence of the Court.

Article 33

Competence of the divisions of the Court of First Instance

1.   Without prejudice to paragraph 7 of this Article, actions referred to in Article 32(1)(a), (c), (f) and (g) shall be brought before:

|  |  |
| --- | --- |
| (a) | the local division hosted by the Contracting Member State where the actual or threatened infringement has occurred or may occur, or the regional division in which that Contracting Member State participates; or |

|  |  |
| --- | --- |
| (b) | the local division hosted by the Contracting Member State where the defendant or, in the case of multiple defendants, one of the defendants has its residence, or principal place of business, or in the absence of residence or principal place of business, its place of business, or the regional division in which that Contracting Member State participates. An action may be brought against multiple defendants only where the defendants have a commercial relationship and where the action relates to the same alleged infringement. |

Actions referred to in Article 32(1)(h) shall be brought before the local or regional division in accordance with point (b) of the first subparagraph.

Actions against defendants having their residence, or principal place of business or, in the absence of residence or principal place of business, their place of business, outside the territory of the Contracting Member States shall be brought before the local or regional division in accordance with point (a) of the first subparagraph or before the central division.

If the Contracting Member State concerned does not host a local division and does not participate in a regional division, actions shall be brought before the central division.

2.   If an action referred to in Article 32(1)(a), (c), (f), (g) or (h) is pending before a division of the Court of First Instance, any action referred to in Article 32(1)(a), (c), (f), (g) or (h) between the same parties on the same patent may not be brought before any other division.

If an action referred to in Article 32(1)(a) is pending before a regional division and the infringement has occurred in the territories of three or more regional divisions, the regional division concerned shall, at the request of the defendant, refer the case to the central division.

In case an action between the same parties on the same patent is brought before several different divisions, the division first seized shall be competent for the whole case and any division seized later shall declare the action inadmissible in accordance with the Rules of Procedure.

3.   A counterclaim for revocation as referred to in Article 32(1)(e) may be brought in the case of an action for infringement as referred to in Article 32(1)(a). The local or regional division concerned shall, after having heard the parties, have the discretion either to:

|  |  |
| --- | --- |
| (a) | proceed with both the action for infringement and with the counterclaim for revocation and request the President of the Court of First Instance to allocate from the Pool of Judges in accordance with Article 18(3) a technically qualified judge with qualifications and experience in the field of technology concerned. |

|  |  |
| --- | --- |
| (b) | refer the counterclaim for revocation for decision to the central division and suspend or proceed with the action for infringement; or |

|  |  |
| --- | --- |
| (c) | with the agreement of the parties, refer the case for decision to the central division. |

4.   Actions referred to in Article 32(1)(b) and (d) shall be brought before the central division. If, however, an action for infringement as referred to in Article 32(1)(a) between the same parties relating to the same patent has been brought before a local or a regional division, these actions may only be brought before the same local or regional division.

5.   If an action for revocation as referred to in Article 32(1)(d) is pending before the central division, an action for infringement as referred to in Article 32(1)(a) between the same parties relating to the same patent may be brought before any division in accordance with paragraph 1 of this Article or before the central division. The local or regional division concerned shall have the discretion to proceed in accordance with paragraph 3 of this Article.

6.   An action for declaration of non-infringement as referred to in Article 32(1)(b) pending before the central division shall be stayed once an infringement action as referred to in Article 32(1)(a) between the same parties or between the holder of an exclusive licence and the party requesting a declaration of non-infringement relating to the same patent is brought before a local or regional division within three months of the date on which the action was initiated before the central division.

7.   Parties may agree to bring actions referred to in Article 32(1)(a) to (h) before the division of their choice, including the central division.

8.   Actions referred to in Article 32(1)(d) and (e) can be brought without the applicant having to file notice of opposition with the European Patent Office.

9.   Actions referred to in Article 32(1)(i) shall be brought before the central division.

10.   A party shall inform the Court of any pending revocation, limitation or opposition proceedings before the European Patent Office, and of any request for accelerated processing before the European Patent Office. The Court may stay its proceedings when a rapid decision may be expected from the European Patent Office.

Article 34

Territorial scope of decisions

Decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect.

CHAPTER VII

Patent mediation and arbitration

Article 35

Patent mediation and arbitration centre

1.   A patent mediation and arbitration centre (‘the Centre’) is hereby established. It shall have its seats in Ljubljana and Lisbon.

2.   The Centre shall provide facilities for mediation and arbitration of patent disputes falling within the scope of this Agreement. Article 82 shall apply mutatis mutandis to any settlement reached 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.   The Centre shall establish Mediation and Arbitration Rules.

4.   The Centre shall draw up a list of mediators and arbitrators to assist the parties in the settlement of their dispute.

PART II

FINANCIAL PROVISIONS

Article 36

Budget of the Court

1.   The budget of the Court shall be financed by the Court's own financial revenues and, at least in the transitional period referred to in Article 83 as necessary, by contributions from the 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 at such a level as to ensure a right balance between the principle of fair access to justice, in particular for small and medium-sized enterprises, micro-entities, natural persons, non-profit organisations, universities and public research organisations and an adequate contribution of the parties for the costs incurred by the Court, recognising the economic benefits to the parties involved, and the objective of a self-financing Court with balanced finances. The level of the Court fees shall be reviewed periodically by the Administrative Committee. Targeted support measures for small and medium-sized enterprises and micro entities may be considered.

4.   If the Court is unable to balance its budget out of its own resources, the Contracting Member States shall remit to it special financial contributions.

Article 37

Financing of the Court

1.   The operating costs of the Court shall be covered by the budget of the Court, in accordance with the Statute.

Contracting Member States setting up a local division shall provide the facilities necessary for that purpose. Contracting Member States sharing a regional division shall provide jointly the facilities 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 into force of this Agreement, the Contracting Member States concerned shall also provide administrative 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 shall provide 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 into force of this Agreement, the contribution by each Contracting Member State having ratified or acceded to the Agreement before the entry into force thereof shall be calculated on the basis of the number of European patents having effect in the territory of that State on the date of entry into force of this Agreement and the number of European patents with respect to which actions for infringement or for revocation have been brought before the national courts of that State in the three years preceding entry into force of this Agreement.

During the same initial transitional period of seven years, for Member States which ratify, or accede to, this Agreement after the entry into force thereof, the contributions shall be calculated on the basis of the number of European patents having effect in the territory of the ratifying or acceding Member State on the date of the ratification or accession and the number of European patents with respect to which actions for infringement or for revocation have been brought before the national courts of the ratifying or acceding Member State in the three years preceding the ratification or accession.

4.   After the end of the initial transitional period of seven years, by which the Court is expected to have become self-financing, should contributions by the Contracting Member States become necessary, they shall be determined in accordance with the scale for the distribution of annual renewal fees for European patents with unitary effect applicable at the time the contribution becomes necessary.

Article 38

Financing of the training framework for judges

The training framework for judges shall be financed by the budget of the Court.

Article 39

Financing of the Centre

The operating costs of the Centre shall be financed by the budget of the Court.

PART III

ORGANISATION AND PROCEDURAL PROVISIONS

CHAPTER I

General provisions

Article 40

Statute

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 of the Administrative Committee, on the basis of a proposal of the Court or a proposal of a Contracting Member State after consultation with the Court. However, such amendments shall not contradict or alter this Agreement.

3.   The Statute shall guarantee that the functioning of the Court is organised in the most efficient and cost-effective manner and shall ensure equitable access to justice.

Article 41

Rules of Procedure

1.   The Rules of Procedure shall lay down the details of the proceedings before the Court. They shall comply with this Agreement and the Statute.

2.   The Rules of Procedure shall be adopted by the Administrative Committee on the basis of broad consultations with stakeholders. The prior opinion of the European Commission on the compatibility 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, on the 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.

3.   The Rules of Procedure shall guarantee that the decisions of the Court are of the highest quality 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 shall provide for the required level of discretion of judges without impairing the predictability of proceedings for the parties.

Article 42

Proportionality and fairness

1.   The Court shall deal with litigation in ways which are proportionate to the importance and complexity thereof.

2.   The Court shall ensure that the rules, procedures and remedies provided for in this Agreement and in the Statute are used in a fair and equitable manner and do not distort competition.

Article 43

Case management

The Court shall actively manage the cases before it in accordance with the Rules of Procedure without impairing the freedom of the parties to determine the subject-matter of, and the supporting evidence for, their case.

Article 44

Electronic procedures

The Court shall make best use of electronic procedures, such as the electronic filing of submissions of the parties and stating of evidence in electronic form, as well as video conferencing, in accordance with the Rules of Procedure.

Article 45

Public proceedings

The proceedings shall be open to the public unless the Court decides to make them confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in the general interest of justice or public order.

Article 46

Legal capacity

Any natural or legal person, or any body equivalent to a legal person entitled to initiate proceedings in accordance with its national law, shall have the capacity to be a party to the proceedings before the Court.

Article 47

Parties

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 in respect of a patent shall be entitled to bring actions before the Court under the same circumstances as the patent proprietor, provided that the patent proprietor is given prior notice.

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 the licence agreement.

4.   In actions brought by a licence holder, the patent proprietor shall be entitled to join the action before the Court.

5.   The validity of a patent cannot be contested in an action for infringement brought by the holder of a licence where the patent proprietor does not take part in the proceedings. The party in an action for infringement wanting to contest the validity of a patent shall have to bring actions against the patent proprietor.

6.   Any other natural or legal person, or any body entitled to bring actions in accordance with its national law, who is concerned by a patent, may bring actions in accordance with the Rules of Procedure.

7.   Any natural or legal person, or any body entitled to bring actions in accordance with its national law and who is affected by a decision of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012 is entitled to bring actions under Article 32(1)(i).

Article 48

Representation

1.   Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

2.   Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

3.   The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before the Court shall be kept by the Registrar.

4.   Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.

5.   Representatives of the parties shall enjoy the rights and immunities necessary for the independent exercise of their duties, including the privilege from disclosure in proceedings before the Court in respect of communications between a representative and the 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.

6.   Representatives of the parties shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know.

7.   Representation in accordance with paragraphs 1 and 2 of this Article shall not be required in proceedings under Article 32(1)(i).

CHAPTER II

Language of proceedings

Article 49

Language of proceedings at the Court of First Instance

1.   The language of proceedings before any local or regional division shall be an official European Union language which is the official language or one of the official languages of the 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 of the official languages of the European Patent Office as the language of proceedings of their local or regional division.

3.   The parties may agree on the use of the language in which the patent was granted as the language of proceedings, subject to approval by the competent panel. If the panel does not approve 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 and fairness, decide on the use of the language in which the patent was granted as the language of proceedings.

5.   At the request of one of the parties and after having heard the other parties and the competent panel, the President of the Court of First Instance may, on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant, decide on the use of the language in which the patent was granted as language of proceedings. In this case the President of the Court of First Instance shall assess the need for specific translation and interpretation arrangements.

6.   The language of proceedings at the central division shall be the language in which the patent concerned was granted.

Article 50

Language of proceedings at the Court of Appeal

1.   The language of proceedings before the Court of Appeal shall be the language of proceedings before the Court of First Instance.

2.   Notwithstanding paragraph 1 the parties may agree on the use of the language in which the patent was granted as the language of proceedings.

3.   In exceptional cases and to the extent deemed appropriate, the Court of Appeal may decide on another official language of a Contracting Member State as the language of proceedings for the whole or part of the proceedings, subject to agreement by the parties.

Article 51

Other language arrangements

1.   Any panel of the Court of First Instance and the Court of Appeal may, to the extent deemed appropriate, dispense with translation requirements.

2.   At the request of one of the parties, and to the extent deemed appropriate, any division of the Court of First Instance and the Court of Appeal shall provide interpretation facilities to assist the parties concerned at oral proceedings.

3.   Notwithstanding Article 49(6), in cases where an action for infringement is brought before the central division, a defendant having its residence, principal place of business or place of business in a Member State shall have the right to obtain, upon request, translations of relevant documents in the language of the Member State of residence, principal place of business or, in the absence of residence or principal place of business, place of business, in the following circumstances:

|  |  |
| --- | --- |
| (a) | jurisdiction is entrusted to the central division in accordance with Article 33(1) third or fourth subparagraph, and |

|  |  |
| --- | --- |
| (b) | the language of proceedings at the central division is a language which is not an official language of the Member State where the defendant has its residence, principal place of business 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. |

CHAPTER III

Proceedings before the Court

Article 52

Written, 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 flexible and balanced manner.

2.   In the interim procedure, after the written procedure and if appropriate, the judge acting as Rapporteur, subject to a mandate of the full panel, shall be responsible for convening an interim hearing. That judge shall in particular explore with the parties the possibility for a settlement, including through mediation, and/or arbitration, by using the facilities of the Centre referred to in Article 35.

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 53

Means of evidence

1.   In proceedings before the Court, the means of giving or obtaining evidence shall include in particular the following:

|  |  |
| --- | --- |
| (a) | hearing the parties; |

|  |  |
| --- | --- |
| (b) | requests for information; |

|  |  |
| --- | --- |
| (c) | production of documents; |

|  |  |
| --- | --- |
| (d) | hearing witnesses; |

|  |  |
| --- | --- |
| (e) | opinions by experts; |

|  |  |
| --- | --- |
| (f) | inspection; |

|  |  |
| --- | --- |
| (g) | comparative tests or experiments; |

|  |  |
| --- | --- |
| (h) | sworn statements in writing (affidavits). |

2.   The Rules of Procedure shall govern the procedure for taking such evidence. Questioning of witnesses and experts shall be under the control of the Court and be limited to what is necessary.

Article 54

Burden of proof

Without prejudice to Article 24(2) and (3), the burden of the proof of facts shall be on the party relying on those facts.

Article 55

Reversal of burden of proof

1.   Without prejudice to Article 24(2) and (3), if the subject-matter of a patent is a process for obtaining a new product, the identical product when produced without the consent of the patent proprietor shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process.

2.   The principle set out in paragraph 1 shall also apply where there is a substantial likelihood that the identical product was made by the patented process and the patent proprietor has been unable, despite reasonable efforts, to determine the process actually used for such identical product.

3.   In the adduction of proof to the contrary, the legitimate interests of the defendant in protecting its manufacturing and trade secrets shall be taken into account.

CHAPTER IV

Powers of the Court

Article 56

The general powers of the Court

1.   The Court may impose such measures, procedures and remedies as are laid down in this Agreement and may make its orders subject to conditions, in accordance with the Rules of Procedure.

2.   The Court shall take due account of the interest of the parties and shall, before making an order, give any party the opportunity to be heard, unless this is incompatible with the effective enforcement of such order.

Article 57

Court experts

1.   Without prejudice to the possibility for the parties to produce expert evidence, the Court may at 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 the expert advice.

2.   To this end, an indicative list of experts shall be drawn up by the Court in accordance with the Rules of Procedure. That list shall be kept by the Registrar.

3.   The court experts shall guarantee independence and impartiality. Rules governing conflicts of interest applicable to judges set out in Article 7 of the Statute shall by analogy apply to court experts.

4.   Expert advice given to the Court by court experts shall be made available to the parties which shall have the possibility to comment on it.

Article 58

Protection of confidential information

To protect the trade secrets, personal data or other confidential information of a party to the proceedings or of a third party, or to prevent an abuse of evidence, the Court may order that the collection and use of evidence in proceedings before it be restricted or prohibited or that access to such evidence be restricted to specific persons.

Article 59

Order to produce evidence

1.   At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party or a third party, the Court may order the opposing party or a third 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 in paragraph 1, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.

Article 60

Order to preserve evidence and to inspect premises

1.   At the request of the applicant which has presented reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed the Court may, even before the commencement of proceedings on the merits of the case, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information.

2.   Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing products, and, in appropriate cases, the materials and implements used in the production and/or distribution of those products and the documents relating thereto.

3.   The Court may, even before the commencement of proceedings on the merits of the case, at the request of the applicant who has presented evidence to support the claim that the patent has been infringed or is about to be infringed, order the inspection of premises. Such inspection of premises shall be conducted by a person appointed by the Court in accordance with the Rules of Procedure.

4.   At the inspection of the premises the applicant shall not be present itself but may be represented by an independent professional practitioner whose name has to be specified in the Court's order.

5.   Measures shall be ordered, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the proprietor of the patent, or where there is a demonstrable risk of evidence being destroyed.

6.   Where measures to preserve evidence or inspect premises are ordered without the other party in the case having been heard, the parties affected shall be given notice, without delay and at the latest immediately after the execution of the measures. A review, including a right to be heard, shall take place upon request of the parties affected with a view to deciding, within a reasonable period after the notification of the measures, whether the measures are to be modified, revoked or confirmed.

7.   The measures to preserve evidence may be subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 9.

8.   The Court shall ensure that the measures to preserve evidence are revoked or otherwise cease to have effect, at the defendant's request, without prejudice to the damages which may be claimed, if the applicant does not bring, within a period not exceeding 31 calendar days or 20 working days, whichever is the longer, action leading to a decision on the merits of the case before the Court.

9.   Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of the patent, the Court may order the applicant, at the defendant's request, to provide the defendant with appropriate compensation for any damage suffered as a result of those measures.

Article 61

Freezing orders

1.   At the request of the applicant which has presented reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed the Court may, even before the commencement of proceedings on the merits of the case, order a party not to remove from its jurisdiction any assets located therein, or not to deal in any assets, whether located within its jurisdiction or not.

2.   Article 60(5) to (9) shall apply by analogy to the measures referred to in this Article.

Article 62

Provisional and protective measures

1.   The Court may, by way of order, grant injunctions against an alleged infringer or against an intermediary whose services are used by the alleged infringer, intended to prevent any imminent infringement, to prohibit, on a provisional basis and subject, where appropriate, to a recurring penalty payment, the continuation of the alleged infringement or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder.

2.   The Court shall have the discretion to weigh up the interests of the parties and in particular to take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction.

3.   The Court may also order the seizure or delivery up of the products suspected of infringing a patent so as to prevent their entry into, or movement, within the channels of commerce. If the applicant demonstrates circumstances likely to endanger the recovery of damages, the Court may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of the bank accounts and of other assets of the alleged infringer.

4.   The Court may, in respect of the measures referred to in paragraphs 1 and 3, require the applicant to provide any reasonable evidence in order to satisfy itself with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed, or that such infringement is imminent.

5.   Article 60(5) to (9) shall apply by analogy to the measures referred to in this Article.

Article 63

Permanent injunctions

1.   Where a decision is taken finding an infringement of a patent, the Court may grant an 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 being used by a third party to infringe a patent.

2.   Where appropriate, non-compliance with the injunction referred to in paragraph 1 shall be subject to a recurring penalty payment payable to the Court.

Article 64

Corrective measures in infringement proceedings

1.   Without prejudice to any damages due to the injured party by reason of the infringement, and without compensation of any sort, the Court may order, at the request of the applicant, that appropriate measures be taken with regard to products found to be infringing a patent and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture 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. |

3.   The Court shall order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.

4.   In considering a request for corrective measures pursuant to this Article, the Court shall take into account the need for proportionality between the seriousness of the infringement and the remedies 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 65

Decision 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 a counterclaim for revocation.

2.   The Court may revoke a patent, either entirely or partly, only on the grounds referred to in Articles 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 patent only in part, the patent shall be limited by a corresponding amendment of the claims and revoked in part.

4.   To the extent that a patent has been revoked it shall be deemed not to have had, from the 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 a copy of the decision to the European Patent Office and, with respect to a European patent, to the national patent office of any Contracting Member State concerned.

Article 66

Powers of the Court concerning decisions of the European Patent Office

1.   In actions brought under Article 32(1)(i), the Court may exercise any power entrusted on the European Patent Office in accordance with Article 9 of Regulation (EU) No 1257/2012, including the rectification of the Register for unitary patent protection.

2.   In actions brought under Article 32(1)(i) the parties shall, by way of derogation from Article 69, bear their own costs.

Article 67

Power to order the communication of information

1.   The Court may, in response to a justified and proportionate request of the applicant and in accordance 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 as the 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. |

2.   The Court may, in accordance with the Rules of Procedure, also order any third party who:

|  |  |
| --- | --- |
| (a) | was found in the possession of the infringing products on a commercial scale or to be using an infringing process on a commercial scale; |

|  |  |
| --- | --- |
| (b) | was found to be providing on a commercial scale services used in infringing activities; or |

|  |  |
| --- | --- |
| (c) | was indicated by the person referred to in points (a) or (b) as being involved in the production, manufacture or distribution of the infringing products or processes or in the provision of the services, |

to provide the applicant with the information referred to in paragraph 1.

Article 68

Award of damages

1.   The Court shall, at the request of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in a patent infringing activity, to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement.

2.   The injured party shall, to the extent possible, be placed in the position it would have been in if no infringement had taken place. The infringer shall not benefit from the infringement. However, damages shall not be punitive.

3.   When the Court sets the damages:

|  |  |
| --- | --- |
| (a) | it shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the injured party by the infringement; or |

|  |  |
| --- | --- |
| (b) | as an alternative to point (a), it may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of the royalties or fees which would have 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 the infringing activity, the Court may order the recovery of profits or the payment of compensation.

Article 69

Legal costs

1.   Reasonable and proportionate legal costs and other expenses incurred by the successful party shall, 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 that costs 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.

4.   At the request of the defendant, the Court may order the applicant to provide adequate security for the legal costs and other expenses incurred by the defendant which the applicant may be liable to bear, in particular in the cases referred to in Articles 59 to 62.

Article 70

Court 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. Any party which has not paid a prescribed court fee may be excluded from further participation in the proceedings.

Article 71

Legal aid

1.   A party who is a natural person and who is unable to meet the costs of the proceedings, either wholly or in part, may at any time apply for legal aid. The conditions for granting of legal aid shall 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 it should 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 aid and the rules on bearing the costs thereof.

Article 72

Period of limitation

Without prejudice to Article 24(2) and (3), actions relating to all forms of financial compensation may not be brought more than five years after the date on which the applicant became aware, or had reasonable grounds to become aware, of the last fact justifying the action.

CHAPTER V

Appeals

Article 73

Appeal

1.   An appeal against a decision of the Court of First Instance may be brought before the Court of Appeal 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.

2.   An appeal against an order of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions:

|  |  |
| --- | --- |
| (a) | for the orders referred to in Articles 49(5), 59 to 62 and 67 within 15 calendar days 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 appeal against the decision, or |  |  |  | | --- | --- | | (ii) | where the Court grants leave to appeal, within 15 days of the notification of the Court's decision to that effect. | |

3.   The appeal against a decision or an order of the Court of First Instance may be based on points of law and matters of fact.

4.   New facts and new evidence may only be introduced in accordance with the Rules of Procedure and where the submission thereof by the party concerned could not reasonably have been expected during proceedings before the Court of First Instance.

Article 74

Effects of an appeal

1.   An appeal shall not have suspensive effect unless the Court of Appeal decides otherwise at the motivated request of one of the parties. The Rules of Procedure shall guarantee that such a decision is taken without delay.

2.   Notwithstanding paragraph 1, an appeal against a decision on actions or counterclaims for revocation and on actions based on Article 32(1)(i) shall always have suspensive effect.

3.   An appeal against an order referred to in Articles 49(5), 59 to 62 or 67 shall not prevent the continuation of the main proceedings. However, the Court of First Instance shall not give a decision in the main proceedings before the decision of the Court of Appeal concerning an appealed order has been given.

Article 75

Decision on appeal and referral back

1.   If an appeal pursuant to Article 73 is well-founded, the Court of Appeal shall revoke the decision of the Court of First Instance and give a final decision. The Court of Appeal may in exceptional cases and in accordance with the Rules of Procedure refer the case back to the Court of First Instance for decision.

2.   Where a case is referred back to the Court of First Instance pursuant to paragraph 1, the Court of First Instance shall be bound by the decision of the Court of Appeal on points of law.

CHAPTER VI

Decisions

Article 76

Basis for decisions and right to be heard

1.   The Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested.

2.   Decisions on the merits may only be based on grounds, facts and evidence, which were submitted by the parties or introduced into the procedure by an order of the Court and on which the parties have had an opportunity to present their comments.

3.   The Court shall evaluate evidence freely and independently.

Article 77

Formal requirements

1.   Decisions and orders of the Court shall be reasoned and shall be given in writing in accordance with the Rules of Procedure.

2.   Decisions and orders of the Court shall be delivered in the language of proceedings.

Article 78

Decisions of the Court and dissenting opinions

1.   Decisions and orders of the Court shall be taken by a majority of the panel, in accordance with 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 opinion separately from the decision of the Court.

Article 79

Settlement

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 way of settlement.

Article 80

Publication of decisions

The Court may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of information concerning the Court's decision, including displaying the decision and publishing it in full or in part in public media.

Article 81

Rehearing

1.   A request for rehearing after a final decision of the Court may exceptionally be granted by the Court of Appeal in the following circumstances:

|  |  |
| --- | --- |
| (a) | on discovery of a fact by the party requesting the rehearing, which is of such a nature as to be a decisive factor and which, when the decision was given, was unknown to the party requesting the rehearing; such request may only be granted on the basis of an act which was held, by a final decision of a national court, to constitute a criminal offence; or |

|  |  |
| --- | --- |
| (b) | in the event of a fundamental procedural defect, in particular when a defendant who did not appear before the Court was not served with the document initiating the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for the defence. |

2.   A request for a rehearing shall be filed within 10 years of the date of the decision but not later than 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.

3.   If the request for a rehearing is well-founded, the Court of Appeal shall set aside, in whole or in part, the decision under review and re-open the proceedings for a new trial and decision, in accordance with the Rules of Procedure.

4.   Persons using patents which are the subject-matter of a decision under review and who act in good faith should be allowed to continue using such patents.

Article 82

Enforcement of decisions and orders

1.   Decisions and orders of the Court shall be enforceable in any Contracting Member State. An order 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 security or an equivalent assurance to ensure compensation for any damage suffered, in particular in the case of injunctions.

3.   Without prejudice to this Agreement and the Statute, enforcement procedures shall be governed 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 in the 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 be sanctioned with a recurring penalty payment payable to the Court. The individual penalty shall be proportionate to the importance of the order to be enforced and shall be without prejudice to the party's right to claim damages or security.

PART IV

TRANSITIONAL PROVISIONS

Article 83

Transitional 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 infringement or for declaration of invalidity of a supplementary protection certificate issued for a product protected by a European patent may still be brought before national courts or other competent national authorities.

2.   An action pending before a national court at the end of the transitional period shall not be affected by the expiry of this period.

3.   Unless an action has already been brought before the Court, a proprietor of or an applicant for a European patent granted or applied for prior to the end of the transitional period under paragraph 1 and, where applicable, paragraph 5, as well as a holder of a supplementary protection certificate issued for a product protected by a European patent, shall have the possibility to opt out from the exclusive competence of the Court. To this end they shall notify their opt-out to the Registry by the latest one month before expiry of the transitional period. The opt-out shall take effect upon its entry into the register.

4.   Unless an action has already been brought before a national court, proprietors of or applicants for European patents or holders of supplementary protection certificates issued for a product protected by a European patent who made use of the opt-out in accordance with paragraph 3 shall be entitled to withdraw their opt-out at any moment. In this event they shall notify the Registry accordingly. The withdrawal of the opt-out shall take effect upon its entry into the register.

5.   Five years after the entry into force of this Agreement, the Administrative Committee shall carry out a broad consultation with the users of the patent system and a survey on the number of European patents and supplementary protection certificates issued for products protected by European patents with respect to which actions for infringement or for revocation or declaration 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 an opinion of the Court, the Administrative Committee may decide to prolong the transitional period by up to seven years.

PART V

FINAL PROVISIONS

Article 84

Signature, ratification and accession

1.   This Agreement shall be open for signature by any Member State on 19 February 2013.

2.   This Agreement shall be subject to ratification in accordance with the respective constitutional requirements of the Member States. Instruments of ratification shall be deposited with the General Secretariat of the Council of the European Union (hereinafter referred to as ‘the depositary’).

3.   Each Member State having signed this Agreement shall notify the European Commission of its ratification of the Agreement at the time of the deposit of its ratification instrument pursuant to Article 18(3) of Regulation (EU) No 1257/2012.

4.   This Agreement shall be open to accession by any Member State. Instruments of accession shall be deposited with the depositary.

Article 85

Functions of the depositary

1.   The depositary shall draw up certified true copies of this Agreement and shall transmit them to the governments of all signatory or acceding Member States.

2.   The depositary shall notify the governments of the signatory or acceding Member States of:

|  |  |
| --- | --- |
| (a) | any signature; |

|  |  |
| --- | --- |
| (b) | the deposit of any instrument of ratification or accession; |

|  |  |
| --- | --- |
| (c) | the date of entry into force of this Agreement. |

3.   The depositary shall register this Agreement with the Secretariat of the United Nations.

Article 86

Duration of the Agreement

This Agreement shall be of unlimited duration.

Article 87

Revision

1.   Either seven years after the entry into force of this Agreement or once 2 000 infringement cases have been decided by the Court, whichever is the later point in time, and if necessary at regular intervals thereafter, a broad consultation with the users of the patent system shall be carried 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 the quality 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 improving the functioning of the Court.

2.   The Administrative Committee may amend this Agreement to bring it into line with an 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 not take effect if a Contracting Member State declares within twelve months of the date of the decision, on the basis of its relevant internal decision-making procedures, that it does not wish to be bound by the decision. In this case, a Review Conference of the Contracting Member States shall be convened.

Article 88

Languages 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 States other than those specified in paragraph 1 shall, if they have been approved by the Administrative Committee, be considered as official texts. In the event of divergences between the various texts, the texts referred to in paragraph 1 shall prevail.

Article 89

Entry into force

1.   This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest.

2.   Any ratification or accession after the entry into force of this Agreement shall take effect on the first day of the fourth month after the deposit of the instrument of ratification or accession.

In witness whereof the undersigned, being duly authorised thereto, have signed this Agreement,

Done at Brussels on 19 February 2013 in English, French and German, all three texts being equally authentic, in a single copy which shall be deposited in the archives of the General Secretariat of the Council of the European Union.

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