Act To Consent To A Unified Patent Jurisdiction Agreement, Done At Brussels On 19 February 2013 (1) (2)

Original Language Title: Loi portant assentiment à l'Accord relatif à une juridiction unifiée du brevet, fait à Bruxelles le 19 février 2013 (1)(2)

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27 MAI 2014. - Act enacting the Agreement on a Unified Patent Court, done in Brussels on February 19, 2013 (1)(2)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement on a Unified Patent Court, made in Brussels on February 19, 2013, will come out its full and full effect.
Art. 3. The revisions and amendments to the Agreement to be adopted pursuant to Article 87 shall be effective and complete.
Art. 4. Within three months of the date of the decisions of the Administrative Committee referred to in Article 87, § 1er and 2, of the Agreement, amending or revising the Agreement, the competent ministers shall inform the House of Representatives and the Senate of such decisions.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 27 May 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
Deputy Prime Minister and Minister of Economy,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Senate (www.senate.be):
Documents: 5-2478.
Annales du Sénat : 13/03/2014.
House of Representatives (www.lachambre.be):
Documents: 53-3454.
Full report : 23/04/2014.
(2) Related States.

AGREEMENT
RELATING TO A UNIFIED LEGALIZATION OF THE BREVET
The Contracting States,
CONSIDERING that cooperation between EU Member States in the field of patents contributes significantly to the process of integration in Europe, including the establishment of an internal market within the European Union characterized by the free movement of goods and services, as well as the creation of a system to ensure that competition is not distorted in the domestic market;
CONSIDERING that the fragmentation of the patent market and the significant variations between national jurisdictional systems are prejudicial to innovation, especially for small and medium-sized enterprises, which have difficulties in enforcing their patents and defending themselves against unfounded actions and patent-related actions that should be cancelled;
CONSIDERING that the European Patent Convention (hereafter referred to as "CBE"), which has been ratified by all Member States of the European Union, provides for a single procedure for the grant of European patents by the European Patent Office;
CONSIDERING that, pursuant to Regulation (EU) No. 1257/2012 (1), patent holders may request that their European patents have a unitary effect in order to obtain the unitary protection conferred by a patent in the Member States of the European Union participating in enhanced cooperation;
DESIRING to improve the respect of patents, to strengthen the means to defend themselves against unfounded actions and patents that should be cancelled and to increase legal security through the creation of a unified patent court for litigation related to the infringement and validity of patents;
CONSIDERING that the unified patent jurisdiction should be designed to make timely and quality decisions, seeking a fair balance between the interests of rights holders and other parties and taking into account the proportionality and flexibility required;
CONSIDERING that the unified patent jurisdiction should be a common jurisdiction to the Contracting Member States and, therefore, part of their judicial system, and that it should enjoy exclusive jurisdiction with regard to European patents with a unitary effect and European patents granted under the provisions of the EPC;
CONSIDERING that the Court of Justice of the European Union must ensure the uniformity of the legal order of the Union and the rule of law of the European Union;
RECALLING the obligations of the Contracting Member States under the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), including the obligation of loyal cooperation set out in Article 4, paragraph 3, of the TEU and the obligation to ensure, through the creation of the unified jurisdiction of the patent, the full application and respect of the rights of the Union on their respective territories,
CONSIDERING that, like any national jurisdiction, the unified jurisdiction of the patent is required to respect and apply the law of the Union and, in collaboration with the Court of Justice of the European Union, which is the guardian of the law of the Union, to ensure its proper application and uniform interpretation; the unified jurisdiction of the patent is, in particular, obliged to cooperate with the Court of Justice of the European Union for the correct interpretation of the law of the Union by relying on the jurisprudence of the Court and by seizing it with prejudicial applications in accordance with Article 267 of the TFEU;
CONSIDERING that Contracting Member States should, in accordance with the jurisprudence of the Court of Justice of the European Union on non-contractual liability, be responsible for the damages resulting from violations of EU law committed by the unified jurisdiction of the patent, including the failure to apply to the Court of Justice of the European Union for prejudicial applications;
CONSIDERING that violations of the law of the Union committed by the unified patent court, including the breach of the obligation to appeal to the Court of Justice of the European Union for prejudicial applications, are directly attributable to the contracting Member States and that a breach procedure may, therefore, be instituted under Articles 258, 259 and 260 of the TFEU against any contracting Member State in order to guarantee the right to respect
RECALLING the primacy of EU law, which includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the fundamental principles of EU 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 the right to a case be heard equitably, publicly and within a reasonable time by an independent and impartial tribunal, the jurisprudence of the European Union
CONSIDERING that this Agreement should be open to the accession of any Member State of the European Union; Member States that have decided not to participate in enhanced cooperation in the area of the creation of a unitary protection conferred by a patent may participate in this agreement with respect to European patents granted for their respective territory;
CONSIDERING that this Agreement should enter into force on 1er January 2014 or the first day of the fourth month following that of the thirteenth deposit, provided that among the Contracting Member States that have deposited their instrument of ratification or accession are the three States in which the largest number of European patents were in force during the year preceding that year in which the agreement is signed, or on the first day of the fourth month after the date of entry into force of the amendments to the Regulation (EU) no. 1215/2012
AGAINST THE PROVISIONS THAT SAY:
PART I - GENERAL AND INSTITUTIONAL PROVISIONS
CHAPTER I - GENERAL PROVISIONS
ARTICLE 1
Unified Patent Court
This Agreement shall establish a unified patent jurisdiction for the settlement of disputes relating to European patents and European patents with a unitary effect.
The unified jurisdiction of the patent shall be a common jurisdiction to the Contracting States and shall therefore be subject to the same obligations under the law of the Union as those which fall under any national jurisdiction of the Contracting States.
ARTICLE 2
Definitions
For the purposes of this Agreement:
(a) The unified jurisdiction of the patent established by this Agreement;
(b) "Member State", a Member State of the European Union;
(c) "Contracting Member State", a Member State Party to this Agreement;
(d) "CBE", the Convention on the Grant of European Patents of 5 October 1973, including any subsequent amendments;
(e) "European patent", a patent granted in accordance with the provisions of the EPC which is not conferred on as a unitary effect under Regulation (EU) No. 1257/2012;
(f) "European patent with a unitary effect", a European patent granted in accordance with the provisions of the EPC to which a unitary effect is conferred under Regulation (EU) No. 1257/2012;
(g) "patent", a European patent and/or a European patent with a unitary effect;
(h) "Additional Protection Certificate", a supplementary protection certificate issued under Regulation (EC) No. 469/2009 (3) or Regulation (EC) No. 1610/96(4);
(i) "statuts", the statutes of the Jurisdiction contained in Annex I, which are an integral part of this Agreement;
(j) "procedure rules", the Rules of Procedure of the Jurisdiction, established in accordance with Article 41.
ARTICLE 3
Scope
This Agreement applies to:
(a) any European patent with a unitary effect;
(b) any additional protection certificate issued for a product protected by a patent;
(c) any European patent that is not yet extinguished on the date of entry into force of this Agreement or that has been granted after that date, without prejudice to Article 83; and
(d) any European patent application pending on the date of entry into force of this Agreement or which was filed after that date, without prejudice to Article 83.
ARTICLE 4
Legal status
1. The Jurisdiction has the legal personality in each Contracting Member State and has the broadest legal capacity recognized to legal persons by the national law of the State concerned.
2. The Jurisdiction is represented by the President of the Court of Appeal, who is elected in accordance with the statutes.
ARTICLE 5
Accountability
1. The contractual liability of the Jurisdiction shall be governed by the law applicable to the contract in question in accordance with Regulation (EC) No. 593/2008 (5) (Rome I), if applicable, or by default in accordance with the law of the Member State of the seized jurisdiction.
2. The non-contractual liability of the Jurisdiction for any damage caused by it and its personnel in the performance of their duties, to the extent that it is not a civil or commercial matter within the meaning of Regulation (EC) No. 864/2007 (6) (Rome II), is governed by the law of the Contracting Member State in which the damage occurred. This provision is without prejudice to the application of section 22.
3. The competent court to settle disputes under paragraph 2 is a jurisdiction of the Contracting State in which the damage occurred.
CHAPTER II - INSTITUTIONAL PROVISIONS
ARTICLE 6
The Jurisdiction
1. The Jurisdiction includes a court of first instance, a court of appeal and a court of registry.
2. The Jurisdiction shall perform the functions assigned to it under this Agreement.
ARTICLE 7
The Court of First Instance
1. The Court of First Instance comprises a central division and local and regional divisions.
2. The central division has its headquarters in Paris, as well as sections in London and Munich. The cases brought before the Central Division are divided in accordance with Appendix II, which is an integral part of this Agreement.
3. A local division is established in a Contracting Member State at the request of the latter, in accordance with the statutes. A Contracting State in the territory of which a local division is located shall designate the seat of the latter.
4. An additional local division shall be established in a Contracting Member State at the request of the Contracting State for each hundred proceedings per calendar year concerning patents having been, for three consecutive years before or after the date of entry into force of this Agreement, engaged in that Contracting Member State. A Contracting Member State does not have more than four local divisions.
5. A regional division shall be established for two or more Contracting Member States at the request of the Contracting States, in accordance with the statutes. These Contracting States shall designate the seat of the division concerned. The regional division can hold its hearings in several locations.
ARTICLE 8
Composition of Trial Chambers
1. The Trial Chambers have a multinational composition. Without prejudice to paragraph 5 of this article and article 33, paragraph 3, point (a), they shall serve as three judges.
2. The Chambers of a local division located in a Contracting Member State in which, over a period of three consecutive years before or after the date of entry into force of this Agreement, on average less than fifty patent procedures were initiated by calendar year, shall sit in formation of a qualified judge on the legal plane who is a national of the Contracting Member State in the territory of which the local division concerned is located and two qualified judges on the legal plane who are not nationals
3. Notwithstanding paragraph 2, the Chambers of a local division located in a Contracting Member State in which, over a period of three consecutive years before or after the date of entry into force of this Agreement, on average at least fifty patent proceedings have been initiated by calendar year, shall sit in the formation of two qualified judges who are nationals of the Contracting Member State in the territory of which is located the local division concerned and a qualified judge The third judge is assigned to the long-term local division where it is necessary for the proper functioning of the divisions whose workload is important.
4. The Chambers of a Regional Division shall serve as two judges qualified on the legal plane chosen from a regional list of judges, who are nationals of the Contracting States concerned and a judge qualified on the legal level, who is not a national of the Contracting States concerned, from the pool of judges and assigned in accordance with Article 18, paragraph 3.
5. At the request of one of the parties, a Chamber of a local or regional division requests the President of the Court of First Instance to assign, in accordance with Article 18, paragraph 3, an additional judge qualified technically, from the pool of judges, and having qualifications and experience in the technical field concerned. In addition, a room of a local or regional division may, after hearing the parties, make such an application on its own initiative, when it considers it appropriate.
In cases where such a technically qualified judge is assigned, no other technically qualified judge may be assigned under section 33, paragraph 3, item (a).
6. The Chambers of the Central Division sit in the formation of two legal qualified judges who are nationals of different Contracting Member States and a technically qualified judge, from the pool of judges and assigned in accordance with Article 18, paragraph 3, having qualifications and experience in the technical field concerned. However, the Chambers of the Central Division who are aware of the actions referred to in article 32, paragraph 1, point (i), shall sit in the formation 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, the parties may agree that their litigation will be brought before a single judge who is legally qualified.
8. The Chambers of the Court of First Instance are presided over by a legal qualified judge.
ARTICLE 9
Court of Appeal
1. The Appeal Court Chambers sit in a multi-national training of five judges. They include three legally qualified judges who are nationals of different Contracting Member States and two technically qualified judges with qualifications and experience in the technical field. Technically qualified judges are assigned to the Chamber by the President of the Court of Appeal who selects them from among the judges who make up the pool of judges referred to in Article 18.
2. Notwithstanding paragraph 1, the Chambers that are aware of the actions referred to in article 32, paragraph 1, point (i), shall sit in the formation of three legal qualified judges who are nationals of different Contracting States.
3. The Chambers of the Court of Appeal are presided over by a legal qualified judge.
4. The rooms of the Court of Appeal are established in accordance with the statutes.
5. The Court of Appeal has its seat in Luxembourg.
ARTICLE 10
The graft
1. A court of appeal is established. The Clerk is headed by the Clerk and performs the functions assigned to him in accordance with the statutes. Subject to the conditions set out in this Agreement and in the Rules of Procedure, the registry held by the Registry shall be public.
2. Subgregs are established in all divisions of the court of first instance.
3. The registry keeps the minutes of all cases brought before the Jurisdiction. At the time of filing, the relevant sub-greffe notified each case to the Registry.
4. The Jurisdiction appoints its Clerk in accordance with Article 22 of the Statutes and determines the rules governing the performance of its duties.
ARTICLE 11
Committees
An Administrative Committee, Budget Committee and Advisory Committee shall be established to ensure the effective implementation and operation of this Agreement. These committees shall, inter alia, exercise the functions of this Agreement and the statutes.
ARTICLE 12
The Administrative Committee
1. The Administrative Committee shall be composed of a representative of each Contracting Member State. The European Commission is represented at the meetings of the Administrative Committee as an observer.
2. Each Contracting State shall have one vote.
3. The Administrative Committee shall adopt its decisions by a three-quarters majority of the Contracting States represented and voting, unless this Agreement or the statutes otherwise provide.
4. The Administrative Committee shall adopt its rules of procedure.
5. The Administrative Committee elects its Chair from among its members for a three-year term.
This mandate is renewable.
ARTICLE 13
The Budget Committee
1. The budget committee is composed of a representative of each Contracting Member State.
2. Each Contracting State shall have one vote.
3. The budget committee shall adopt its decisions by a simple majority of the representatives of the Contracting States. However, the majority of three-quarters of the representatives of the Contracting Member States is required for the adoption of the budget.
4. The budget committee adopts its rules of procedure.
5. The budget committee elects its chair from among its members for a three-year term. This mandate is renewable.
ARTICLE 14
Advisory Committee
1. The Advisory Committee:
(a) assist the Administrative Committee in preparing the appointment of judges of the Jurisdiction;
(b) make proposals for the presidium referred to in Article 15 of the statutes with respect to the guidance for the training framework for judges referred to in Article 19; and
(c) renders advice to the Administrative Committee on the qualification requirements referred to in section 48, paragraph 2.
2. The Advisory Committee is composed of patent judges and practitioners of patent law and patent litigation with the highest level of recognized competence. Its members are appointed, in accordance with the procedure provided for in the statutes, for a term of six years. This mandate is renewable.
3. The composition of the advisory committee ensures a wide range of expertise in the field concerned and the representation of each of the contracting member States. The members of the Advisory Committee shall exercise their functions independently and shall not be bound by any instruction.
4. The Advisory Committee adopts its rules of procedure.
5. The Advisory Committee elects its Chair from among its members for a three-year term.
This mandate is renewable.
CHAPTER III - JURISING
ARTICLE 15
Requirements for appointment as a judge
1. The Jurisdiction includes legal qualified judges and technically qualified judges. The judges demonstrate the highest level of competence and proven experience in patent litigation.
2. Legally qualified judges shall have the qualifications to be appointed to judicial office in a Contracting State.
3. Technically qualified judges hold a university degree in a technical field and have proven competence in this field. They also have proven knowledge of civil law and civil procedure in the field of patent litigation.
ARTICLE 16
Appointment procedure
1. The Advisory Committee shall establish a list of the most qualified candidates to be appointed to the Jurisdiction in accordance with the statutes.
2. On the basis of this list, the administrative committee appoints, in common agreement, the judges of the Jurisdiction.
3. Implementing provisions relating to the appointment of judges are set out in the statutes.
ARTICLE 17
Judicial independence and impartiality
1. The Jurisdiction, the judges sitting there and the Clerk benefit from judicial independence. In the performance of their duties, judges are not bound by any instruction.
2. Legally qualified judges, as well as technically qualified judges serving on the Jurisdiction on a permanent basis, may not engage in any other professional, paid or unpaid work, unless the Administrative Committee derogates.
3. Notwithstanding paragraph 2, the exercise of the judge's mandate does not exclude the exercise of other judicial functions at the national level.
4. The exercise of the technically qualified judge's term not permanently based on the Jurisdiction does not exclude the exercise of other functions, provided that there is no conflict of interest.
5. In the event of a conflict of interest, the judge concerned does not take part in the proceedings. The rules governing conflicts of interest are set out in the statutes.
ARTICLE 18
Pool of judges
1. A pool of judges is established in accordance with the statutes.
2. The pool of judges includes all legal qualified judges and all technically qualified judges of the court of first instance who sit on a permanent or non-jurisdiction basis. The pool of judges includes, for each technical field, at least one technically qualified judge with the required qualifications and experience. Technically qualified judges from the pool of judges are also available to the Court of Appeal.
3. Where this agreement or statutes provide, the pool judges shall be assigned to the division concerned by the president of the court of first instance. The assignment of judges takes into account their legal or technical skills, their language skills and the required experience. It guarantees the same high level of quality of legal and technical work and skills in all Trial Chambers.
ARTICLE 19
Training framework
1. A training framework is established for judges, whose terms and conditions are specified in the statutes, with a view to improving and increasing the skills available in the field of patent litigation and ensuring a wide geographical distribution of these specific knowledge and experiences. The infrastructure for this framework is located in Budapest.
2. The training framework focuses in particular on:
(a) the organization of internships in the relevant national patent courts or in the divisions of the court of first instance with a large number of cases in the field of patent litigation;
(b) improved language skills;
(c) technical aspects of patent law;
(d) dissemination of knowledge and experience in civil proceedings for technically qualified judges;
(e) the preparation of candidates for judges.
3. The training framework provides ongoing training. Meetings are held regularly between all Juridiction judges to discuss developments in the field of patent law and to ensure consistency in Juridiction's jurisprudence.
CHAPTER IV - PRIMAUTE DU DROIT DE L'UNION ETATS MEMBERS CONTRACTANTS
ARTICLE 20
Primity and respect for Union law
The Jurisdiction applies the law of the Union in its entirety and respects its primacy.
ARTICLE 21
Prejudicial applications
As a common jurisdiction to the Contracting Member States and to the extent that it is part of their judicial system, the Jurisdiction cooperates with the Court of Justice of the European Union in order to ensure the proper application and uniform interpretation of the law of the Union, like any national jurisdiction, in particular in accordance with Article 267 of the TFEU. The decisions of the Court of Justice of the European Union are binding on the Jurisdiction.
ARTICLE 22
Liability for damages resulting from violations of EU law
1. The Contracting Member States shall be jointly and severally liable for the damage resulting from a violation of the Union's right by the Court of Appeal, in accordance with the Union's right to non-contractual liability of the Member States for the damage resulting from a violation of the Union's right by their national jurisdictions.
2. An action relating to such damage shall be taken against the Contracting Member State in which the applicant has his domicile or principal place of business or, in the absence of a domicile or principal place of business, his establishment before the competent authority of that Contracting Member State. If the applicant does not have his domicile or principal place of business or, in the absence of a domicile or principal place of business, his or her place of business in a Contracting State, he or she may form such action against the Contracting State in which the Court of Appeal has its seat before the competent authority of that Contracting State.
The competent authority shall apply the law of the forum, with the exception of its private international law, to all matters not governed by the law of the Union or by this Agreement. The appellant has the right to obtain the full amount of damages required by the competent authority from the Contracting Member State against which the action was formed.
3. The Contracting State that has paid the damages shall have the right to obtain a proportional contribution, determined in accordance with the method provided for in Article 37, paragraphs 3 and 4, by the other Contracting States. The detailed rules governing the contribution of the Contracting States under this paragraph shall be established by the Administrative Committee.
ARTICLE 23
Responsibility of Contracting States
The actions of the Jurisdiction are directly attributable individually to each of the Contracting Member States, including for the purposes of Articles 258, 259 and 260 of the TFEU, as well as collectively to all Contracting Member States.
CHAPTER V - SOURCES OF LAW AND MATERIAL LAW
ARTICLE 24
Sources of law
1. In full compliance with Article 20, when it has to know of a matter before it under this Agreement, the Jurisdiction bases its decisions on:
(a) the right of the Union, including Regulation (EU) No. 1257/2012 and Regulation (EU) No. 1260/2012 (7);
(b) this Agreement;
(c) the EPC;
(d) other international agreements applicable to patents and bindings in respect of all Contracting Member States; and
(e) National rights.
2. In cases where the Jurisdiction bases its decisions on national law, including, where applicable, the right of non-contracting States, the applicable law shall be determined:
(a) by the directly applicable provisions of EU law which contain rules of private international law; or
(b) in the absence of any provisions directly applicable to the law of the Union or if they do not apply, by international instruments containing rules of private international law; or
(c) in the absence of provisions referred to in (a) and (b), by the national provisions of private international law determined by the Jurisdiction.
3. The right of non-contracting States shall apply when it is designated under the rules referred to in paragraph 2, in particular with respect to articles 25 to 28, 54, 55, 64, 68 and 72.
ARTICLE 25
Right to prevent direct exploitation of the invention
A patent gives its holder the right to prevent, in the absence of its consent, any third party:
(a) manufacture, offer, market or use a product that is the subject of the patent, or import or hold that product for such purposes;
(b) to use the process that is the subject 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 holder, to offer its use in the territory of the Contracting Member States in which the patent produces its effects;
(c) to offer, put on the market, use or import or hold for these purposes a product obtained directly by a process that is the subject of the patent.
ARTICLE 26
Right to prevent indirect exploitation of the invention
1. A patent gives the holder the right to prevent, in the absence of his or her consent, any third party from providing or offering to provide, in the territory of the Contracting States in which the patent produces its effects, a person other than that authorized to exploit the patented invention, means of implementing, in that territory, such invention relating to an essential element of the patent, where the third party knows, or should have known,
2. Subsection 1 does not apply where the means are common consumer products unless the third party incites the person to whom they are provided to commit any act prohibited by section 25.
3. Not considered to be persons authorized to exploit the invention within the meaning of paragraph 1 those who perform the acts referred to in article 27, paragraphs (a) to (e).
ARTICLE 27
Limitations on the effects of a patent
The rights granted by a patent do not extend to any of the following:
(a) acts performed in a private and non-commercial context;
(b) the acts performed on an experimental basis relating to the subject matter of the patented invention;
(c) the use of biological material to create or develop other plant varieties;
(d) acts authorized under Article 13, paragraph 6, Directive 2001/82/EC (8) or Article 10, paragraph 6, of Directive 2001/83/EC (9) with respect to any patent relating to the product within the meaning of either of these directives;
(e) the preparation of extemporaneous and per-unit medicines in pharmacy informals, on a medical order, or the medications so prepared;
(f) the use of the patented invention on board ships of countries members of the International Union for the Protection of Industrial Property (Union de Paris) or members of the World Trade Organization other than the Contracting Member States in which the patent concerned produces its effects, in the body of the said vessel, in machinery, flats, flats and other accessories, when such ships temporarily or accidentally enter the waters of a Contracting State concerned
(g) the use of the patented invention in the construction or operation of the air or land locomotion equipment or other means of transport of member countries of the International Union for the Protection of Industrial Property (Union de Paris) or members of the World Trade Organization other than the Contracting Member States in which the patent concerned produces its effects, or accessories of such equipment, when the latter temporarily or accidentally enters into the relevant Contracting State
(h) the acts provided for in Article 27 of the Convention relating to International Civil Aviation of 7 December 1944 (10), where such acts relate to aircraft of a country party to the Convention other than a Contracting State in which that patent produces its effects;
(i) the use by a farmer of the product of its crop for reproduction or multiplication on its own farm, provided that the plant breeding material has been sold or marketed in another form to the farmer by the owner of the patent or with his consent for agricultural exploitation. The extent and conditions of such use correspond to those set out in Article 14 of Regulation (EC) No 2100/94 (11);
(j) the use by a livestock farmer protected for agricultural use, provided that livestock or other animal breeding equipment have been sold or marketed in another form to the farmer by the owner of the patent or with his consent. Such use includes the provision of the animal or other animal breeding material for the continuation of the farm activity of the farmer, but not the sale of the animal in the context or for the purpose of a commercial breeding activity;
(k) the acts and use of the information obtained as authorized under sections 5 and 6 of Directive 2009/24/EC (12), in particular its provisions relating to decompilation and interoperability; and
(l) acts authorized under Article 10 of Directive 98/44/EC(13).
ARTICLE 28
Right based on prior use of the invention
Any person who, in the event that a national patent has been granted for an invention, would have acquired a right in a Contracting State based on an earlier use of that invention or a right of personal possession on that invention shall, in that Contracting State, have the same rights in respect of the patent having that invention for purpose.
ARTICLE 29
Exhaustion of rights granted by a European patent
The rights conferred by a European patent do not extend to acts that concern a product covered by this patent after this product has been placed on the market in the European Union by the patent owner or with his consent, unless there are legitimate grounds justifying that the holder opposes the continued marketing of the product.
ARTICLE 30
Effects of supplementary protection certificates
A supplementary protection certificate confers the same rights as those conferred by the patent and is subject to the same limitations and obligations.
CHAPTER VI - INTERNATIONAL COMPETENCE
ARTICLE 31
International jurisdiction
The international jurisdiction of the Jurisdiction is established in accordance with Regulation (EU) No. 1215/2012 or, where applicable, on the basis of the Convention concerning the Jurisdiction, Recognition and Enforcement of Decisions in Civil and Commercial Matters (Lugano Convention) (14).
ARTICLE 32
Jurisdiction Jurisdiction
1. The Jurisdiction has exclusive jurisdiction to:
(a) counterfeit or threatened infringement of patents and additional protection certificates and related defences, including counterclaims for licences;
(b) actions in recognition of non-competition of patents and additional protection certificates;
(c) actions to obtain interim and conservative measures and injunctions;
(d) the invalidity of patents and additional protection certificates;
(e) counterclaims for invalidation of patents and additional protection certificates;
(f) damages or repairs arising from the provisional protection conferred by a published European patent application;
(g) actions relating to the use of the invention prior to the grant of the patent or the law based on prior use of the invention;
(h) repairs to the licences formed on the basis of Article 8 of Regulation (EU) No. 1257/2012; and
(i) actions concerning decisions taken by the European Patent Office in the exercise of the tasks referred to in Article 9 of Regulation (EU) No. 1257/2012.
2. The national jurisdictions of the Contracting States shall remain competent for the proceedings relating to patents and complementary protection certificates which do not fall within the exclusive jurisdiction of the Jurisdiction.
ARTICLE 33
Jurisdiction of Trial Court Divisions
1. Without prejudice to paragraph 7 of this article, the actions referred to in article 32, paragraph 1, (a), (c), (f) and (g), shall be brought before:
(a) the local division located in the territory of the Contracting Member State where the counterfeit or threat of counterfeit occurred or is likely to occur, or before the regional division to which the Contracting Member State participates; or
(b) the local division located in the territory of the Contracting State in which the defendant or, if there are several defendants, one of the defendants has his domicile or principal place of business or, in the absence of a domicile or principal place of business, his place of business, or before the regional division to which the said Contracting State participates. An action may be taken against several defendants only if they have a commercial relationship and if the action concerns the same alleged infringement.
The actions referred to in section 32, paragraph 1, point (h), shall be brought before the local or regional division in accordance with paragraph (b) of the first paragraph.
The actions against defendants with their domicile or principal place of business or, in the absence of a domicile or principal place of business, their establishment outside the territory of the Contracting Member States shall be brought before the local or regional division in accordance with paragraph (a) of the first paragraph or before the central division.
If no local division is located in the territory of the Contracting State concerned and that it does not participate in a regional division, the shares are brought before the central division.
2. If an action referred to in article 32, paragraph 1, points (a), (c), (f), (g) or (h), is pending before a division of the court of first instance, no action referred to in article 32, paragraph 1, points (a), (c), (f), (g) or (h), may be brought between the same parties in respect of the same patent before any other division.
If an action referred to in section 32, paragraph 1, point (a), is pending before a regional division and the counterfeit occurred in the territory of at least three regional divisions, at the request of the respondent, the relevant regional division refers the matter to the central division.
If an action is initiated between the same parties with respect to the same patent in several different divisions, the Division first seized shall be competent for the entire case and any subsequent division shall declare the action inadmissible in accordance with the Rules of Procedure.
3. A counterfeit application referred to in section 32, paragraph 1, point (e), may be filed as part of a counterfeiting action referred to in section 32, paragraph 1, point (a). After hearing the parties, the local or regional division concerned has the power to:
(a) to decide both on the counterfeit action and on the counterclaim and to request the presiding judge to assign, in accordance with article 18, paragraph 3, a technically qualified judge from the pool of judges and having qualifications and experience in the technical field concerned;
(b) either to return the counterclaim in nullity to the central division for decision and to suspend or decide on the counterfeit action; or
(c) either, with the agreement of the parties, to refer the matter to the Central Division for decision.
4. The actions referred to in section 32, paragraph 1, points (b) and (d), are brought before the central division. If, however, a counterfeiting action referred to in article 32, paragraph 1, point (a), has been initiated between the same parties with respect to the same patent before a local or regional division, the above actions may only be brought before the same local or regional division.
5. If a nullity action referred to in article 32, paragraph 1, point (d), is pending before the central division, a counterfeiting action referred to in article 32, paragraph 1, point (a), may be initiated between the same parties in respect of the same patent before any division, in accordance with paragraph 1 of this article, or before the central division. The local or regional division concerned has the power to rule in accordance with paragraph 3 of this article.
6. An action to determine non-counterfeiture referred to in section 32, paragraph 1, point (b), pending before the central division shall be suspended once a counterfeiting action referred to in section 32, paragraph 1, point (a), is commenced between the same parties or between the proprietor of an exclusive licence and the party requesting the finding of non-contrefaçon on the same patent before a local or regional division within a period of three months from
7. The parties may agree to carry the actions referred to in article 32, paragraph 1, points (a) to (h), before the division of their choice, including the central division.
8. The actions referred to in article 32, paragraph 1, points (d) and (e), may be initiated without the appellant having to file an opposition with the European Patent Office.
9. The actions referred to in section 32, paragraph 1, point (i), are brought before the central division.
10. The parties shall inform the Juridiction of any proceedings of nullity, limitation or opposition pending before the European Patent Office, as well as any requests for accelerated procedure submitted to the European Patent Office.
The Jurisdiction may suspend proceedings when a prompt decision may be expected from the European Patent Office.
ARTICLE 34
Territorial scope of decisions
The decisions of the Jurisdiction cover, in the case of a European patent, the territory of the Contracting States for which the patent produces its effects.
CHAPTER VII
MEDIATION AND ARBITRATION IN CONTROL
ARTICLE 35
Patent Mediation and Arbitration Centre
1. It is established a patent mediation and arbitration centre (hereinafter referred to as "centre"). He has his seats in Ljubljana and Lisbon.
2. The Centre provides mediation and arbitration services for patent disputes that fall within the scope of this Agreement. Section 82 applies mutatis mutandis to any settlement of a dispute through the services provided by the centre, including mediation. However, a patent may not be cancelled or limited in mediation or arbitration proceedings.
3. The centre defines rules governing mediation and arbitration.
4. The Centre establishes a list of mediators and arbitrators to assist the parties in resolving their dispute.
PART II - FINANCIAL PROVISIONS
ARTICLE 36
Budget for the Jurisdiction
1. The budget of the Jurisdiction shall be financed from the financial income of the Jurisdiction and, at least during the transitional period referred to in Article 83, if necessary, on the contributions of the Contracting Member States. The budget is balanced.
2. The Juridiction's own financial revenues include payment of procedural fees and other revenues.
3. The procedural costs are determined by the Administrative Committee. They include a fixed amount, combined with an amount based on the value of the dispute, beyond a predefined ceiling.
The amount of procedural fees is set at a level that ensures a fair balance between the principle of equitable access to justice, in particular for small and medium-sized enterprises, micro-entities, natural persons, non-profit organizations, universities and public research organizations, and an adequate contribution from the parties to the costs set out in the Jurisdiction, taking into account the economic benefits to the parties concerned and the objective of ensuring that the Juridiction has a balance of self The amount of procedural costs is reviewed periodically by the Administrative Committee. Targeted support measures for small and medium-sized enterprises and micro-entities can be considered.
4. If the Jurisdiction is unable to balance its budget with its own resources, the contracting Member States shall make special financial contributions to it.
ARTICLE 37
Financing of the Jurisdiction
1. The operational costs of the Jurisdiction are covered by its budget, in accordance with the statutes.
The contracting Member States that establish a local division shall provide the necessary infrastructure for this purpose. The Contracting States that share a regional division shall jointly provide the necessary infrastructure for this purpose. The Contracting Member States in whose territory is the central division, its sections or the Court of Appeal provide the necessary infrastructure to them.
During an initial transitional period of seven years from the date of entry into force of this Agreement, the Contracting States concerned shall also provide administrative support personnel, without prejudice to the status of such personnel.
2. At the date of entry into force of this Agreement, Contracting Member States shall make the initial financial contributions necessary for the establishment of the Jurisdiction.
3. During the initial transitional period of seven years from the date of entry into force of this Agreement, the contribution of each Contracting State that has ratified or acceded to the Agreement before its entry into force shall be calculated according to the number of European patents producing their effects on the territory of the State concerned at the date of entry into force of this Agreement and the number of European patents on which actions in counterfeit or nullity have been brought before the courts
During the same initial transitional period of seven years, the contributions of the Member States which ratify or accede to this Agreement after its entry into force are calculated according to the number of European patents producing their effects on the territory of the Member State ratifying the Agreement or acceding to it on the date of ratification or accession and the number of European patents concerning which actions in counterfeiting or invalidity have been initiated before the Member States
4. Upon the expiration of the original seven-year transitional period, at the end of which it is anticipated that the Juridiction will self-finance, if contributions from the Contracting Member States prove to be necessary, they shall be determined in accordance with the key to apportioning the annual fees of the European patents with a unitary effect applicable at the time the contribution becomes necessary.
ARTICLE 38
Financing of the training framework for judges
The training framework for judges is financed from the Juridiction budget.
ARTICLE 39
Financing of the centre
The operating costs of the centre are financed from the Juridiction budget.
PART III - ORGANIZATION AND PROCEDURAL PROVISIONS
CHAPTER I - GENERAL PROVISIONS
ARTICLE 40
Statutes
1. The statutes set out the modalities of the organization and operation of the Jurisdiction.
2. The statutes are annexed to this Agreement. They may be amended by decision of the Administrative Committee on the basis of a proposal by the Jurisdiction or a proposal by a Contracting Member State after consultation with the Jurisdiction. However, these amendments are not contrary to this Agreement and do not alter it.
3. The statutes ensure that the functioning of the Jurisdiction is organized in the most efficient and economic manner and ensures equitable access to justice.
ARTICLE 41
Rules of procedure
1. The rules of procedure set out the procedure before the Jurisdiction. It is in accordance with this Agreement and the statutes.
2. The Rules of Procedure are adopted by the Administrative Committee on the basis of extensive consultations with interested parties. The European Commission's preliminary opinion on the compatibility of the rules of procedure with EU law is requested.
The Rules of Procedure may be amended by decision of the Administrative Committee on the basis of a proposal by the Jurisdiction and after consultation with the European Commission. However, these amendments are not contrary to this Agreement or to the statutes and do not affect them.
3. The Rules of Procedure ensure that the decisions rendered by the Jurisdiction are of the highest quality and that the procedure is organized in the most efficient and economical manner. It strikes a balance between the legitimate interests of all parties. It provides judges with the required level of discretion without compromising the predictability of the proceedings for the parties.
ARTICLE 42
Proportionality and equity
1. The Jurisdiction deals with disputes in a manner commensurate with their importance and complexity.
2. The Jurisdiction ensures that the rules, procedures and remedies provided for in this Agreement and by the statutes are used in a fair and equitable manner and do not distort competition.
ARTICLE 43
Treatment of cases
The Jurisdiction shall diligently deal with the cases before it in accordance with its Rules of Procedure without compromising the freedom of the parties to determine the subject matter and the evidence behind it.
ARTICLE 44
Electronic procedures
The Jurisdiction shall make best use of electronic procedures, including the filing of the parties ' submissions and the provision of evidence, as well as videoconferencing, in accordance with its Rules of Procedure.
ARTICLE 45
Public debates
The proceedings of the Jurisdiction shall be public unless it decides, to the extent necessary, to make them confidential in the interests of any of the parties or other persons concerned, 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 authorized to initiate proceedings in accordance with its national law, has the capacity to act before the Jurisdiction.
ARTICLE 47
Parties
1. The holder of a patent is entitled to form an action before the Jurisdiction.
2. Unless otherwise provided by the licence agreement, the proprietor of an exclusive patent licence is entitled to form an action before the Jurisdiction under the same conditions as the patent holder, provided that the patent holder is informed in advance.
3. The holder of a non-exclusive licence shall not be entitled to form an action before the Jurisdiction unless the holder of the patent is informed in advance and to the extent that it is expressly authorized by the licence agreement.
4. As part of the actions formed by the licensee of a licence, the patentee has the right to join the action before the Jurisdiction.
5. The validity of a patent may not be contested in a counterfeit action initiated by the licensee if the patent holder does not participate in the proceedings. The party to the counterfeit action who wishes to contest the validity of a patent is required to initiate an action against the patent holder.
6. Any other natural or legal person, or any body authorized to initiate an action in accordance with its national law, which is concerned by a patent, may initiate an action in accordance with the rules of procedure.
7. Any natural or legal person, or any body authorized to initiate an action in accordance with its national law and which is affected by a decision taken by the European Patent Office in the exercise of the tasks referred to in Article 9 of Regulation (EU) No. 1257/2012 has the right to form an action under Article 32, paragraph 1, point (i).
ARTICLE 48
Representation
1. The parties shall be represented by a lawyer authorized to practise before a court of a Contracting State.
2. The parties also have the opportunity to be represented by European patent attorneys entitled to act as professional representatives before the European Patent Office under Article 134 of the EPC and who possess the appropriate qualifications, such as a European certificate in the field of patent litigation.
3. The qualification requirements set out in subsection 2 are established by the Administrative Committee. A list of European patent attorneys authorized to represent the parties to the Jurisdiction is held by the Registrar.
4. Representatives of the parties may be assisted by patent agents, who are authorized to speak at the hearing before the Jurisdiction in accordance with the Rules of Procedure.
5. Representatives of the parties shall enjoy the rights and guarantees necessary for the independent exercise of their functions, including the confidentiality privilege covering communications between a representative and the represented party or any other person in the proceedings before the Jurisdiction, under the conditions set out in the Rules of Procedure, unless the party concerned expressly waives that privilege.
6. The representatives of the parties are obliged not to enshrine points of law or facts before the Jurisdiction, knowingly or when they had any place to know them.
7. The representation referred to in paragraphs 1 and 2 of this section is not required in the proceedings under section 32, paragraph 1, point (i).
CHAPTER II - LANGUAGE OF PROCEDURE
ARTICLE 49
Language of proceedings before the court of first instance
1. The language of procedure before the local or regional divisions is an official language of the European Union which is the official language or one of the official languages of the Contracting State in the territory of which the division concerned is located, or the official languages designated by the Contracting Member States that share a regional division.
2. Notwithstanding paragraph 1, Contracting Member States may designate one or more official language(s) of the European Patent Office as the procedural language of their local or regional division.
3. The parties may agree to use as a procedural language the language in which the patent was granted, subject to the approval of the competent board. If the board does not approve the choice of parties, the parties may request that the matter be referred to the central division.
4. With the agreement of the parties, the competent board may, for convenience and fairness reasons, decide to use as a procedural language the language in which the patent was granted.
5. At the request of one of the parties and after hearing the other parties and the competent chamber, the presiding judge of the court of first instance may, for reasons of fairness and in the light of all relevant circumstances, including the position of the parties, in particular the respondent's position, decide to use as a language of procedure the language in which the patent was granted. In this case, the presiding judge of the court of first instance determines whether there is a need for specific translation and interpretation provisions.
6. The language of procedure before the central division is the language in which the patent was granted.
ARTICLE 50
Language of procedure before the Court of Appeal
1. The language of procedure before the Court of Appeal is the language used in the Court of First Instance.
2. Notwithstanding paragraph 1, the parties may agree to use as a procedural language the language in which the patent was granted.
3. In exceptional cases and to the extent appropriate, the Court of Appeal may decide to use, for all or part of the proceedings, another official language of a Contracting Member State as a language of procedure, subject to the agreement of the parties.
ARTICLE 51
Other language provisions
1. Any Chamber of the Court of First Instance and the Court of Appeal may, to the extent it is deemed appropriate, go beyond the translation requirements.
2. At the request of one of the parties, and to the extent that it is deemed appropriate, any division of the Court of First Instance and the Court of Appeal shall provide an interpretation service to assist the parties involved in oral proceedings.
3. Notwithstanding section 49, paragraph 6, in cases where a counterfeit action is brought before the Central Division, a defendant with his domicile, principal place of business or establishment in a Member State has the right to obtain, upon request, a translation of the relevant documents in the language of the Member State in which he has his domicile, principal place of business or, in the absence of a principal place of residence, his establishment, in the following circumstances:
(a) the central division is seized in accordance with article 33, paragraph 1, third or fourth paragraph; and
(b) the language of procedure before the central division is not an official language of the member State in which the defendant has his domicile, principal place of business or, in the absence of a domicile or principal place of business, his place of business; and
(c) the defendant does not have sufficient knowledge of the procedural language.
CHAPTER III - PROCEDURE FOR LEGAL
ARTICLE 52
Written procedure, status procedure and oral procedure
1. The procedure before the Jurisdiction includes a written procedure, a pre-trial procedure and an oral procedure, in accordance with the Rules of Procedure. All procedures are organized in a flexible and balanced manner.
2. As part of the pre-trial procedure, once the written procedure is completed and if necessary, the judge acting as rapporteur, within the framework of a mandate received from the College of the Whole, is responsible for convening a pre-trial hearing. In particular, the judge examines with the parties the possibilities of reaching a settlement, including through mediation and/or arbitration using the services of the centre referred to in section 35.
3. The oral proceedings provide the parties with an opportunity to give due consideration to their arguments. The Jurisdiction may, with the agreement of the parties, waive the hearing.
ARTICLE 53
Evidence
1. In the proceedings before the Jurisdiction, the following measures of instruction may include:
(a) the hearing of the parties;
(b) requests for information;
(c) the production of documents;
(d) the hearing of witnesses;
(e) expertise;
(f) descent at the scene;
(g) comparative tests or experiences;
(h) written statements made under the oath.
2. The rules of procedure govern the procedure for obtaining such evidence.
The examination of witnesses and experts is conducted under the control of the Jurisdiction and is limited to what is necessary.
ARTICLE 54
Charge of proof
Without prejudice to Article 24, paragraphs 2 and 3, the burden of proof of the facts rests with the party who invokes them.
ARTICLE 55
Reversal of the burden of proof
1. Without prejudice to Article 24, paragraphs 2 and 3, if the subject-matter of a patent is a process for obtaining a new product, any identical product manufactured without the consent of the patent holder is, to the contrary, considered to have been obtained by the patented process.
2. The principle set out in paragraph 1 also applies where the probability is high that the identical product was obtained by the patented process and that the patentee was unable, despite reasonable effort, to determine what process was actually used for the identical product.
3. In the presentation of the evidence to the contrary, the defendant's legitimate interests in the protection of its manufacturing secrets and cases are considered.
CHAPTER IV - LEGALIZATION
ARTICLE 56
The general powers of the Jurisdiction
1. The Jurisdiction may impose the measures, procedures and remedies provided for in this Agreement and make its terms and conditions orders in accordance with the Rules of Procedure.
2. The Jurisdiction duly takes into account the interests of the parties and, before making an order, it gives all parties the opportunity to be heard, unless it is incompatible with the effective execution of the order.
ARTICLE 57
Experts to the Jurisdiction
1. Without prejudice to the ability of the parties to produce expert evidence, the Jurisdiction may at any time appoint experts to provide specialized lighting on specific aspects of the species. The Jurisdiction provides these experts with all the information they need to give their opinion as experts.
2. To this end, an indicative list of experts is prepared by the Jurisdiction in accordance with the Rules of Procedure. This list is maintained by the clerk.
3. The experts at the Jurisdiction offer any guarantee of independence and impartiality. The rules governing conflicts of interest applicable to judges set out in section 7 of the statutes apply by analogy to them.
4. The views of experts before the Jurisdiction are made available to the parties, who have the opportunity to comment on these opinions.
ARTICLE 58
Protection of confidential information
In order to protect the secrets of cases, personal data or other confidential information from a party to the proceedings or a third party, or in order to prevent misappropriation of evidence, the Jurisdiction may order that the collection and use of evidence during the proceedings be restricted or prohibited or that access to such evidence is limited to specified persons.
ARTICLE 59
Evidence Production Order
1. At the request of a party who has submitted reasonably accessible and sufficient evidence to support his allegations and has specified the evidence in support of his allegations under the control of the opposing party or a third party, the Juridiction may order that such evidence be produced by the opposing party or a third party, provided that the protection of confidential information is ensured. This order does not require that party to file against itself.
2. At the request of a party, the Jurisdiction may, under the same conditions as those provided for in paragraph 1, order the communication of bank, financial or commercial documents under the control of the adverse party, provided that the protection of confidential information is ensured.
ARTICLE 60
Evidence and descent order
1. At the request of the appellant who has submitted reasonably accessible evidence to support his allegations that his patent has been infringed or that such infringement is imminent, the Jurisdiction may, even prior to the commencement of proceedings on the merits, order prompt and effective interim measures to retain relevant evidence in respect of the alleged infringement, provided that the protection of confidential information is ensured.
2. Such measures may include the detailed description, with or without sampling, or the material seizure of the contentious products and, in appropriate cases, the materials and instruments used to produce and/or distribute these products as well as related documents.
3. The Jurisdiction may, even before the commencement of an action on the merits, at the request of the appellant who has presented evidence to substantiate his allegations that his patent has been infringed or that such a counterfeit is imminent, order a descent at the scene. This descent is carried out by a person appointed by the Jurisdiction in accordance with the Rules of Procedure.
4. During the descent on the scene, the applicant is not present in person, but may be represented by an independent professional whose name appears in the Jurisdiction Order.
5. Measures are ordered, if any, without the other party being heard, including where any delay is likely to cause irreparable harm to the patent owner or where there is a demonstrable risk of destruction of evidence.
6. In cases where evidence conservation measures or descent are ordered without the hearing of the other party, the affected parties are notified, without delay and no later than immediately after the enforcement of the measures. A review, including the right to be heard, shall take place at the request of the affected parties so that it is decided, within a reasonable period of time after the notification of the measures, if the measures are to be amended, repealed or confirmed.
7. The evidence retention measures may be subject to the applicant's constitution of an adequate bail or equivalent guarantee to ensure compensation for any damage suffered by the respondent in accordance with paragraph 9.
8. The Jurisdiction ensures that the evidence retention measures are repealed or otherwise cease to produce their effects, at the defendant's request, without prejudice to any damages that may be claimed, if the Grievor has not commenced, within a period not exceeding thirty-one calendar days or twenty working days, the longest period being retained, of action leading to a substantive decision before the Juridiction.
9. In cases where the evidence retention measures are repealed or cease to be applicable due to any action or omission of the appellant, or in cases where it is subsequently found that there has been no infringement or threat of infringement of a patent, the Jurisdiction may order the appellant, at the defendant's request, to grant the defendant appropriate compensation for any damage incurred as a result of these measures.
ARTICLE 61
Gel decisions
1. At the request of the appellant who has submitted reasonably accessible evidence to support his allegations that his patent has been infringed or that such infringement is imminent, the Jurisdiction may, even before an action on the merits, order a party not to leave the territory that falls within the jurisdiction of the assets located in that territory or not to carry out transactions on assets, whether or not they are located in that territory.
2. Section 60, paragraphs 5 to 9, shall apply by analogy to the measures referred to in this section.
ARTICLE 62
Provisional and provisional measures
1. The Jurisdiction may, by order, issue injunctions against the alleged counterfeit or an intermediary whose services are used by the alleged counterfeit, to prevent imminent infringement, to prohibit, on a provisional basis and subject, as appropriate, to the payment of an infringement, that the alleged counterfeit continues, or to subordinate its continuation with the guarantees of the constitution of the
2. The Jurisdiction has a discretionary power to balance the interests of the parties and, in particular, to take into account the possible adverse effects for either of the parties resulting from its decision to pronounce or not the injunction in question.
3. The Jurisdiction may also order the seizure or surrender of products suspected of counterfeiting a patent to prevent their introduction or circulation in commercial circuits. If the appellant warrants circumstances that might jeopardize the recovery of damages, the Juridiction may order the arrest of the alleged counterfeiter's movable and immovable property, including the blocking of his bank accounts and other assets.
4. The Jurisdiction may, as part of the measures referred to in paragraphs 1 and 3, require the appellant to provide any reasonable evidence in order to obtain with sufficient certainty the conviction that he is the holder of the right and that he is impaired of his or her right or that such breach is imminent.
5. Section 60, paragraphs 5 to 9, shall apply by analogy to the measures referred to in this section.
ARTICLE 63
Permanent injunctions
1. When a decision finding the infringement of a patent is rendered, the Jurisdiction may render an injunction against the counterfeiter to prohibit the prosecution of the infringement. The Jurisdiction may also issue such an injunction against an intermediary whose services are used by a third party to counteract a patent.
2. If applicable, non-compliance with the injunction referred to in subsection 1 is subject to a charge to the Jurisdiction.
ARTICLE 64
Corrective action in a counterfeit procedure
1. Without prejudice to any damages caused to the injured party due to the infringement, and without compensation for any kind, the Jurisdiction may order, at the request of the Grievor, that appropriate measures be taken with respect to the products of which it has found that they contravene a patent and, in the appropriate cases, with respect to the materials and instruments that have primarily been used in the creation or manufacture of these products.
2. These measures will include:
(a) a statement of counterfeiting;
(b) the recall of products of commercial circuits;
(c) the elimination of the contentious nature of products;
(d) the finalization of commercial circuit products; or
(e) the destruction of the relevant products and/or materials and instruments.
3. The Jurisdiction orders that these measures be implemented at the counterfeiter's expense, unless there are specific reasons to oppose them.
4. In reviewing an application for remedial action under this section, the Juridiction takes into account the fact that there must be a proportionality between the gravity of the counterfeit and the corrective measures to be ordered, as the counterfeit is prepared to deliver the material in a non-litigious state, as well as the interests of third parties.
ARTICLE 65
Decision on the validity of a patent
1. The Jurisdiction determines the validity of a patent on the basis of a nullity action or a counterclaim in nullity.
2. The Jurisdiction shall not cancel a patent in whole or in part only for the reasons referred to in Article 138, paragraph 1, and Article 139, paragraph 2, of the EPC.
3. Without prejudice to Article 138, paragraph 3, of the EPC, if the grounds for invalidity are only partially applied to the patent, the patent is limited by a corresponding amendment of the claims and is partially cancelled.
4. To the extent that a patent has been cancelled, it is deemed to have been devoid of the effects specified in Articles 64 and 67 of the EPC.
5. When the Jurisdiction, in a final decision, cancels a patent in whole or in part, it transmits a copy of the decision to the European Patent Office and, if it is a European patent, to the national patent office of any Contracting State concerned.
ARTICLE 66
Powers of the Jurisdiction concerning the decisions of the European Patent Office
1. As part of the proceedings under section 32, paragraph 1, point (i), the Jurisdiction may exercise any power that has been entrusted to the European Patent Office under Article 9 of Regulation (EU) No. 1257/2012, including the rectification of the Unitary Protection Register conferred by a patent.
2. As part of the actions under section 32, paragraph 1, point (i), by derogation from section 69, the parties shall bear their own costs.
ARTICLE 67
Power to order the communication of information
1. The Jurisdiction may, in response to a justified and proportional application by the appellant and in accordance with the Rules of Procedure, order a counterfeiter to inform the appellant of:
(a) the origin and distribution channels of contentious products or processes;
(b) quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for contentious products; and
(c) the identity of any third party involved in the production or distribution of contentious products or in the use of the disputed process.
2. The Jurisdiction may also, in accordance with the Rules of Procedure, order any third party:
(a) which was found to be in possession of contentious products on a commercial scale or to use a disputed process on a commercial scale;
(b) that it was found to provide services used for commercial contentious activities; or
(c) designated by the person referred to in (a) or (b) as having participated in the production, manufacture or distribution of contentious products or processes or in the provision of services;
provide the claimant with the information referred to in paragraph 1.
ARTICLE 68
Grant of damages
1. The Jurisdiction, at the request of the injured party, orders the infringer who has engaged in a counterfeiting activity of a patent knowingly or having reasonable grounds to know, to pay to the injured party damages corresponding to the prejudice actually suffered by that party because of the infringement.
2. The injured party is, to the extent possible, placed in the situation in which it would have been if no counterfeit occurred. The counterfeit could not benefit from counterfeiting. However, damages are not punitive.
3. When the Jurisdiction fixes damages:
(a) it takes into consideration all appropriate aspects such as negative economic consequences, including the loss of profits, suffered by the injured party, the possible unfair profits made by the counterfeit and, in appropriate cases, elements other than economic factors, such as the moral damage caused to the injured party as a result of counterfeiting; or
(b) in place of the solution provided for in paragraph (a), it may, in appropriate cases, decide to set a lump sum of damages on the basis of elements such as, at least, the amount of royalties or fees that would have been due if the counterfeiter had requested permission to use the patent in question.
4. When the counterfeit has not engaged in a knowingly counterfeit activity or having reasonable grounds to know, the Jurisdiction may order the recovery of profits or the payment of compensation.
ARTICLE 69
Justice costs
1. The reasonable and proportionate court fees and other expenses incurred by the party that has obtained a gain of cause are, as a general rule, borne by the party that succumbs, unless fairness opposes it, within the limits of a ceiling set in accordance with the Rules of Procedure.
2. Where a party obtains only partial gain of cause or in exceptional circumstances, the Jurisdiction may order that the costs be apportioned fairly or that the parties bear their own costs.
3. Each party should bear the unnecessary costs it incurred by the Jurisdiction or the other party.
4. At the defendant's request, the Jurisdiction may order the appellant to provide an appropriate guarantee for the costs of justice and other expenses incurred by the defendant that may be the responsibility of the claimant, particularly in the cases referred to in sections 59 to 62.
ARTICLE 70
Procedural costs
1. The parties to the proceedings before the Jurisdiction shall bear the procedural costs.
2. Procedural fees are paid in advance, unless otherwise provided in the Rules of Procedure. Any party who has not paid the prescribed procedural costs may be excluded from any participation following the proceedings.
ARTICLE 71
Legal aid
1. A party who has the quality of a physical person and is unable to perform, in whole or in part, the costs of the proceedings may at any time request legal aid. The conditions for granting legal aid are set out in the Rules of Procedure.
2. The Jurisdiction decides, in accordance with the Rules of Procedure, whether legal aid is to be granted in whole or in part, or to refuse it.
3. On the proposal of the Jurisdiction, the Administrative Committee sets out the level and rules for legal aid.
ARTICLE 72
Prescription
Without prejudice to section 24, paragraphs 2 and 3, the actions relating to all forms of financial compensation shall be prescribed by five years from the date on which the applicant was aware or reasonably required to have known the last act justifying the action.
CHAPTER V - VOIES OF RECOURS
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 that has partially or totally succumbed to its finding within two months of the date of 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 that has partially or totally succumbed to its conclusions:
(a) for orders referred to in section 49, paragraph 5, and sections 59 to 62 and 67, within fifteen calendar days after the notice of the order to the applicant;
(b) for orders other than those referred to in (a):
(i) at the same time as the appeal against the decision, or
ii) if the Jurisdiction grants leave to appeal, within fifteen days of notification of the Jurisdiction decision to do so.
3. The appeal against a decision or order of the court of first instance may relate to points of law and issues of fact.
4. New evidence and evidence can only be introduced in accordance with the Rules of Procedure and that when the party concerned cannot reasonably be expected to have produced them during the proceedings before the Court of First Instance.
ARTICLE 74
Effects of the call
1. An appeal has no suspensive effect unless the appeal court decides otherwise on a reasoned request from one of the parties. The rules of procedure ensure that such a decision is made without delay.
2. Notwithstanding paragraph 1, an appeal against a decision on nullity actions or counterclaims in nullity and on actions based on article 32, paragraph 1, point (i), has always a suspensive effect.
3. An appeal against an order under section 49, paragraph 5, as well as sections 59 to 62 or 67, does not preclude the continuation of the proceedings in the principal. However, the court of first instance does not make a decision in the proceedings to the principal prior to the decision of the court of appeal concerning the appeal order.
ARTICLE 75
Decision on appeal and referral
1. If an appeal pursuant to section 73 is based, the Court of Appeal shall annul the decision of the Court of First Instance and make a final decision. The Court of Appeal may, in exceptional cases and in accordance with the Rules of Procedure, refer the matter to the Court of First Instance for a decision.
2. Where a case is referred to the Court of First Instance pursuant to subsection 1, the Court of Appeal's decision on the points of law is bound.
CHAPTER VI - DECISIONS
ARTICLE 76
Basis of decisions and right to be heard
1. The Jurisdiction shall rule in accordance with the requests submitted by the parties and shall not grant more than what is requested.
2. Decisions on the merits can only be based on the means, facts and evidence presented by the parties or brought into the order procedure of the Jurisdiction and on which the parties had the opportunity to present their observations.
3. Jurisdiction appreciates the evidence freely and independently.
ARTICLE 77
Formal requirements
1. Decisions and orders of the Jurisdiction shall be in writing and in accordance with the Rules of Procedure.
2. Jurisdiction decisions and orders are rendered in the language of procedure.
ARTICLE 78
Dissident Jurisdiction and Opinions
1. The decisions and orders of the Jurisdiction shall be taken by a majority of the members of the Chamber in accordance with the statutes. In the event of an equal vote, the president's vote is preponderant.
2. In exceptional circumstances, a judge of the chamber may express a dissenting opinion separately from the Juridiction decision.
ARTICLE 79
Transaction
Parties may, at any time during the proceeding, terminate the dispute by the conclusion of a transaction, which is confirmed by a decision of the Jurisdiction. A patent may not be cancelled or limited by transaction.
ARTICLE 80
Publication of decisions
The Jurisdiction may order, at the applicant's request and at the counterfeit's expense, appropriate measures for the dissemination of information concerning the Jurisdiction decision, including the posting of the decision and its publication in whole or in part in the public media.
ARTICLE 81
Revision
1. The Court of Appeal may, on an exceptional basis, grant an application for review after a final decision of the Jurisdiction in the following circumstances:
(a) because of the discovery by the party requesting revision of a fact of a decisive influence that, at the time the decision was rendered, was unknown to the party requesting revision; such a request may only be granted on the basis of an act described as a criminal offence by a final decision of a national court; or
(b) in the event of a fundamental procedural violation, in particular where a defendant who has not appeared before the Jurisdiction has not been served as an introductive proceeding or equivalent act in a timely manner and in such a way that he can defend himself.
2. An application for review shall be made within 10 years of the date of the decision and no later than two months after the date of the discovery of the new fact or procedural violation. Such a request has no suspensive effect unless the Court of Appeal decides otherwise.
3. If the application for review is substantiated, the Court of Appeal shall, in whole or in part, overturn the review decision and reopen the proceedings for a new proceeding and a new decision, in accordance with the Rules of Procedure.
4. Persons using patents that are the subject of a review decision and that act in good faith should be allowed to continue using these patents.
ARTICLE 82
Enforcement of decisions and orders
1. The decisions and orders of the Jurisdiction are enforceable in any Contracting State. An enforceable formula is attached to the Jurisdiction decision.
2. If necessary, the execution of a decision may be subject to the deposit of a bail or the establishment of an equivalent guarantee in order to ensure compensation for any damage suffered, especially in the case of injunctions.
3. Without prejudice to this agreement and the statutes, the enforcement procedures shall be governed by the law of the Contracting State in which the execution takes place. Any decision of the Jurisdiction shall be executed under the same conditions as a decision rendered in the Contracting Member State in which the execution takes place.
4. If a party does not comply with an order of the Jurisdiction, that party may be sanctioned by an offence to pay to the Jurisdiction. The individual infringement is proportionate to the importance of the order to be enforced and is without prejudice to the right of the party to claim damages or bail.
PART IV - TRANSITIONAL PROVISIONS
ARTICLE 83
Transitional regime
1. For a transitional period of seven years from the date of entry into force of this Agreement, a counterfeit or invalid action of a European patent, or a counterfeit action or a claim for nullity of a complementary protection certificate issued for a product protected by a European patent, may still be brought before national courts or other competent national authorities.
2. The expiration of the transitional period does not affect a pending action before a national court at the end of that period.
3. Unless an action has already been brought before the Jurisdiction, a European patent holder or applicant issued or requested before the end of the transitional period in accordance with paragraph 1 and, where applicable, in paragraph 5, as well as a holder of a supplementary protection certificate issued for a product protected by a European patent, may decide to waive exclusive jurisdiction of the Jurisdiction. For this purpose, the Board shall notify the Registry of its decision no later than one month before the expiry of the transitional period. The derogation shall take effect at the time of registration.
4. Unless an action has already been brought before a national court, a European patent holder or applicant or a holder of a supplementary protection certificate issued for a product protected by a European patent that makes use of the exemption provided for in paragraph 3 has the right to withdraw that exemption at any time. In this case, he informs the registry. The withdrawal of the exemption takes effect at the time of registration.
5. Five years after the entry into force of this Agreement, the Administrative Committee shall conduct a broad consultation with the users of the patent system and a study on the number of European patents and additional protection certificates issued for products protected by a European patent on which counterfeit or nullity actions or applications for invalidity shall remain before national courts under paragraph 1, as well as on the grounds and consequences of this situation. Based on this consultation and advice from the Jurisdiction, the Administrative Committee may decide to extend the transitional period 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 rules of the Member States. The 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 at the time of the deposit of the instrument of ratification in accordance with Article 18, paragraph 3, of Regulation (EU) No. 1257/2012.
4. This Agreement shall be open to the accession of any Member State. The instruments of accession shall be deposited with the depositary.
ARTICLE 85
Functions of the depositary
1. The depositary shall prepare certified copies of this Agreement and shall transmit them to the Governments of all signatory or adherent member States.
2. The depositary shall notify the Governments of the signatory or adherent member States:
(a) any signature;
(b) the deposit of any instrument of ratification or accession;
(c) the effective date of this Agreement.
3. The depositary shall register this agreement with the United Nations Secretariat.
ARTICLE 86
Duration of the agreement
This Agreement has an indefinite period.
ARTICLE 87
Revision of the agreement
1. Seven years after the coming into force of this Agreement or after the Jurisdiction has decided 2000 counterfeit disputes, the later date being retained, and if necessary at regular intervals thereafter, the Administrative Committee shall conduct a broad consultation with users of the patent system on the operation, effectiveness and cost-effectiveness of the Juridiction, as well as on the confidence of users of the system in the quality of the decisions rendered. On the basis of this consultation and advice from the Jurisdiction, the Administrative Committee may decide to review this Agreement with a view to improving the functioning of the Jurisdiction.
2. The Administrative Committee may amend this Agreement to bring it into conformity with an international treaty dealing with patents or with the law of the Union.
3. A decision taken by the Administrative Committee under paragraphs 1 and 2 shall not take effect if a Contracting Member State declares, within twelve months from the date of the decision, on the basis of its applicable internal decision-making procedures, that it does not wish to be bound by the decision. In this case, a review conference bringing together the Contracting Member States is convened.
ARTICLE 88
Languages of the agreement
1. This Agreement shall be established in a single copy in the German, English and French languages, each of these texts being equally authentic.
2. The texts of this Agreement established in the official languages of the Contracting States other than those mentioned in paragraph 1 shall, if approved by the Administrative Committee, be considered official texts. In the event of discrepancies between the various texts, the texts referred to in paragraph 1 shall prevail.
ARTICLE 89
Entry into force
1. This Agreement comes into force on 1er January 2014 or on the first day of the fourth month following that of the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including by the three Member States in which the largest number of European patents produced their effects in the year before that when the signature of this Agreement takes place, or on the first day of the fourth month after the date of entry into force of the amendments to the Regulation (EU) no later than 1215/2012
2. Any ratification or accession occurring after the entry into force of this Agreement shall take effect on the first day of the fourth month following the deposit of the instrument of ratification or accession.
In faith, the undersigned, duly authorized to do so, have signed this Agreement.
Done in Brussels on 19 February 2013 in German, English and French, the three texts being equally authentic, in a single copy deposited in the archives of the General Secretariat of the Council of the European Union.
Annex I
STATUS OF UNIFIEE LEGALITY OF BREVET
ARTICLE 1
Scope of application
These statutes contain institutional and financial provisions relating to the unified patent jurisdiction established in accordance with Article 1er the deal.
CHAPTER I - JUDGES
ARTICLE 2
Conditions for the performance of the functions of a judge
1. Any person who is a national of a Contracting Member State and who meets the conditions set out in Article 15 of the Agreement and in these Statutes may be appointed a judge.
2. Judges have a good mastery of at least one official language of the European Patent Office.
3. An experience in the field of patent litigation, which must be demonstrated for the purpose of the appointment referred to in Article 15, paragraph 1, of the agreement, may be obtained by training in accordance with Article 11, paragraph 4, point (a), of these statutes.
ARTICLE 3
Appointment of judges
1. Judges shall be appointed in accordance with the procedure provided for in Article 16 of the Agreement.
2. Job offers are published and indicate the conditions required under section 2. The Advisory Committee shall render an opinion on the qualification of candidates to serve as judge of the Jurisdiction. The notice includes a list of the most qualified candidates. The list contains at least twice as many candidates as there are posts to be filled. If necessary, the Advisory Committee may recommend that, before an appointment decision is made, a candidate to serve as a judge shall be trained in the field of patent litigation in accordance with Article 11, paragraph 4, item (a).
3. During the appointment of judges, the Administrative Committee shall ensure the best legal and technical expertise and a balanced composition of the Jurisdiction on as wide a geographical basis as possible among nationals of the Contracting States.
4. The Administrative Committee appoints as many judges as it is necessary for the proper functioning of the Jurisdiction. It first appoints the number of judges required to constitute at least one chamber in each of the divisions of the Court of First Instance and at least two chambers in the Court of Appeal.
5. The decision of the Administrative Committee on the appointment of qualified judges on a permanent or non-permanent basis and technically qualified judges who sit on a permanent basis refers to the Jurisdiction and/or the Division of the Court of First Instance to which each judge is appointed, as well as the technical areas for which a technically qualified judge is appointed.
6. Technically qualified judges who do not sit permanently are appointed judges of the Jurisdiction and integrated into the pool of judges on the basis of their special qualifications and experience. The appointment of these judges to the Jurisdiction is so that all technical areas are covered.
ARTICLE 4
Mandate of judges
1. Judges are appointed for a term of six years, beginning on the date provided for in the instrument of appointment. They can be reappointed.
2. In the absence of provisions regarding the date, the term begins on the date on which the instrument of appointment has been established.
ARTICLE 5
Appointment of members of the Advisory Committee
1. Each Contracting Member State proposes, for the appointment of a member of the Advisory Committee, a candidate who meets the conditions set out in Article 14, paragraph 2, of the Agreement.
2. The members of the Advisory Committee shall be appointed by the Administrative Committee on an agreement.
ARTICLE 6
Serment
Before assuming office, the judges shall, in a public session, swear to exercise their duties impartially and conscientiously and shall not disclose any secret of the proceedings of the Jurisdiction.
ARTICLE 7
Impartiality
1. Immediately after sworn in, the judges sign a declaration by which they solemnly undertake, during the duration of their duties and after the termination of their duties, to comply with their duties arising out of their office, including duties of honesty and delicacy with respect to the acceptance, after such termination, of certain functions or benefits.
2. Judges cannot know of a case in which:
(a) intervened as advice;
(b) they were parties or acted on behalf of one of the parties;
(c) they were called upon to adjudicate as members of a court, court, board of appeal, board of arbitration or mediation, commission of inquiry or any other title;
(d) they have a personal or financial interest, or in relation to one of the parties; or
(e) they are linked to one of the parties or representatives of them by family ties.
3. If, for a special reason, a judge considers that he or she does not have to participate in the judgment or examination of a particular case, he or she shall notify the President of the Court of Appeal or, if it is a judge appointed to the Court of First Instance, the President of the Court of First Instance. If, for a special reason, the President of the Court of Appeal or, if it is a judge appointed to the Court of First Instance, the President of the Court of First Instance considers that a judge should not sit or conclude in a specific case, the President of the Court of Appeal or the President of the Court of First Instance shall justify that assessment in writing and notify the judge concerned.
4. Any party to an action may object to a judge participating in the proceedings on any of the grounds listed in paragraph 2 or if the judge is rightly suspected of bias.
5. In the event of difficulty with the application of this article, the presidium shall rule in accordance with the rules of procedure. The judge concerned is heard, but he does not participate in the proceedings.
ARTICLE 8
Immunity of judges
1. Judges enjoy immunity from jurisdiction. After the termination of their duties, they continue to receive immunity in respect of the acts performed by them in relation to their official quality.
2. Presidium can lift immunity.
3. In the event that immunity has been lifted, a criminal action is brought against a judge, the judge is only justiciable in each of the contracting Member States of the competent jurisdiction to judge the magistrates belonging to the highest national jurisdiction.
4. The Protocol on the Privileges and Immunities of the European Union is applicable to the judges of the Jurisdiction, without prejudice to the provisions relating to the immunity of jurisdiction of the judges contained in these statutes.
ARTICLE 9
Cessation of functions
1. Apart from renewals after the expiry of a term under section 4 and death, the functions of a judge shall be terminated individually by resignation.
2. In the event of a judge's resignation, the letter of resignation is addressed to the President of the Court of Appeal or, if it is a judge appointed to the Court of First Instance, to the President of the Court of First Instance to be forwarded to the Chair of the Administrative Committee.
3. Except in cases where Article 10 receives application, a judge shall continue to sit until the appointment of his successor.
4. It shall be filled with any vacancy by the appointment of a new judge for the remaining term of office.
ARTICLE 10
Revocation
1. A judge may not be relieved of his or her functions or declared to be deprived of any other benefits unless the presidium decides that he or she has ceased to meet the requirements or to meet the obligations arising out of his or her office. The judge concerned is heard, but he does not participate in the proceedings.
2. The Clerk of the Jurisdiction shall bring the decision to the attention of the Chair of the Administrative Committee.
3. In the event of a decision of a judge of his or her functions, the notification shall be vacant.
ARTICLE 11
Training
1. Appropriate and regular training of judges is provided in the training framework provided for in Article 19 of the Agreement. The presidium adopts training rules that ensure the overall implementation and coherence of the training framework.
2. The training framework provides for the development of a platform for the exchange of specialized knowledge and a discussion forum, including:
(a) organizing courses, conferences, seminars, workshops and symposia;
(b) cooperating with international organizations and educational institutions in the field of intellectual property; and
(c) promoting and supporting continuing vocational training.
3. An annual programme of work and training guidance is established, which provides for an annual training plan for each judge in which its main training needs are identified in accordance with the training rules.
4. In addition, the training framework:
(a) Provide appropriate training for newly appointed judges and judges in the Jurisdiction;
(b) Supports projects to facilitate cooperation between representatives, patent attorneys and the Jurisdiction.
ARTICLE 12
Remuneration
The Administrative Committee shall determine the amount of the remuneration of the President of the Court of Appeal, the President of the Court of First Instance, the judges, the Registrar, the Deputy Registrar and the staff.
CHAPTER II - PROVISIONS RELATING TO THE UNITED NATIONS
SECTION 1 - COMMON PROVISIONS
ARTICLE 13
President of the Court of Appeal
1. The President of the Court of Appeal is elected by all judges of the Court of Appeal, among his members, for a three-year term. The president of the court of appeal can be re-elected twice.
2. The election of the President of the Court of Appeal shall take place by secret ballot.
If a judge obtains an absolute majority, he is elected. If no judge obtains the absolute majority, a second vote is organized and the judge who obtains the largest number of votes is elected.
3. The President of the Court of Appeal directs the judicial activities and administration of the Court of Appeal and presides over the Court of Appeal sitting in the plenary.
4. If the position of President of the Court of Appeal becomes vacant before the term of office, a successor shall be elected for the remaining term of office.
ARTICLE 14
President of the Court of First Instance
1. The President of the Court of First Instance shall be elected by all permanent judges of the Court of First Instance, among its members, for a term of three years. The president of the court of first instance can be re-elected twice.
2. The first president of the Court of First Instance is a national of the Contracting Member State in whose territory is the seat of the Central Division.
3. The president of the court of first instance directs the judicial activities and administration of the court of first instance.
4. Section 13, paragraphs 2 and 4, applies by analogy to the President of the Court of First Instance.
ARTICLE 15
Pressidium
1. The presidium is composed of the president of the Court of Appeal, who acts as president, the president of the Court of First Instance, two judges of the Court of Appeal elected from among its members, three permanent judges of the Court of First Instance elected from its members and the clerk, who is a non-voting member.
2. The presidium shall perform the functions conferred upon it in accordance with these statutes. It may, without prejudice to its own responsibility, delegate certain tasks to one of its members.
3. The presidium is responsible for the management of the Jurisdiction and, in particular:
(a) develop proposals to amend the Rules of Procedure in accordance with Article 41 of the Agreement and proposals for the Financial Regulations of the Jurisdiction;
(b) prepare the annual budget, annual accounts and annual report of the Jurisdiction and submit them to the budget committee;
(c) Provide guidance on the training programme for judges and monitor their implementation;
(d) make decisions regarding the appointment and revocation of the Clerk and the Deputy Clerk;
(e) define the rules governing transplantation and sub-greffes;
(f) renders a notice in accordance with Article 83, paragraph 5, of the agreement.
4. The presidium shall make the decisions referred to in articles 7, 8, 10 and 22 without the participation of the clerk.
5. The presidium may only make valid decisions if all its members are present or duly represented. Decisions are made by a majority vote.
ARTICLE 16
Staff
1. Officials and other officers of the Jurisdiction are responsible for assisting the President of the Court of Appeal, the President of the Court of First Instance, the judges and the Registrar. They are accountable to the Registrar, under the authority of the President of the Court of Appeal and the President of the Court of First Instance.
2. The Administrative Committee shall establish the status of officials and other officers of the Jurisdiction.
ARTICLE 17
Judicial holidays
1. After consultation with the presidium, the President of the Court of Appeal sets out the duration of judicial holidays and the rules regarding respect for legal holidays.
2. During the judicial holiday period, the Presidency of the Court of Appeal and the Presidency of the Court of First Instance may be exercised by a judge whom the president concerned invited to assume this role. The President of the Court of Appeal may, in the event of an emergency, summon the judges.
3. The President of the Court of Appeal and the President of the Court of First Instance may, for just reasons, grant leave to the judges of the Court of Appeal and the judges of the Court of First Instance respectively.
SECTION 2 - THE FIRST INSTANCE TRIBUNAL
ARTICLE 18
Creation and suppression of a local division or regional division
1. An application from one or more Contracting Member States for the establishment of a local or regional division is addressed to the Chair of the Administrative Committee. It refers to the headquarters of the local or regional division concerned.
2. The decision of the Administrative Committee to establish a local or regional division refers to the number of judges of the division concerned and is public.
3. The Administrative Committee shall, at the request of the Contracting Member State in whose territory the local division is located or at the request of the Contracting States participating in the regional division, decide to delete a local or regional division. The decision to delete a local or regional division refers to the date on which the new cases will no longer be brought before the division concerned and the date on which the division will cease to exist.
4. From the date on which a local or regional division ceases to exist, the judges assigned to the local or regional division concerned are assigned to the central division, and the pending cases before the local or regional division concerned are transferred, together with the sub-greffe and all its documentation, to the central division.
ARTICLE 19
Rooms
1. The assignment of judges and the allocation of cases within a division to its chambers are governed by the rules of procedure. A judge of the board shall be appointed president in accordance with the rules of procedure.
2. The Chamber may delegate, in accordance with the rules of procedure, certain functions to one or more of the judges who make up it.
3. A permanent judge who is responsible for urgent cases for each division may be appointed in accordance with the Rules of Procedure.
4. In cases where the dispute is brought before a single judge in accordance with Article 8, paragraph 7, of the agreement, or a judge of permanence, in accordance with paragraph 3 of this Article, the judge shall exercise all the functions of a board.
5. A judge of the Chamber acts as a rapporteur in accordance with the rules of procedure.
ARTICLE 20
Pool of judges
1. A list of judges included in the pool of judges is prepared by the Registrar. For each judge, the list indicates at least the language skills, the technical field and the related experience, as well as the cases already handled by the judge.
2. An application to the President of the Court of First Instance to assign a judge from the pool of judges includes the subject matter of the case, the official language of the European Patent Office used by the judges of the Chamber, the language of procedure and the technical field required.
SECTION 3 - THE COURT
ARTICLE 21
Rooms
1. The composition of the rooms and the allocation of affairs to the rooms are governed by the rules of procedure. A judge of the board shall be appointed president in accordance with the rules of procedure.
2. When a case is of exceptional importance, and in particular when the decision is likely to have implications for the unity and consistency of Juridiction's jurisprudence, the Court of Appeal may decide, on the basis of a proposal by its President, to refer the case to the Plenary Assembly.
3. The Chamber may delegate, in accordance with the rules of procedure, certain functions to one or more of the judges who make up it.
4. A judge of the Chamber acts as a rapporteur in accordance with the rules of procedure.
SECTION 4 - GREFFE
ARTICLE 22
Appointment and revocation of the Registrar
1. The presidium appoints the Clerk of the Jurisdiction for a term of six years. He can be reappointed.
2. The President of the Court of Appeal shall inform the Presidium, two weeks before the date fixed for the appointment of the Registrar, of the nominations that have been submitted.
3. Before assuming office, the Clerk sworn in before the presidium to perform his duties impartially and conscientiously.
4. The Clerk may be relieved of his or her duties only if he has ceased to meet his or her obligations. The presidium makes its decision after hearing the clerk.
5. If the clerk's position becomes vacant before the expiry of his term, the presidium appoints a new clerk for a term of six years.
6. In the event of the absence or incapacity of the Clerk or the vacancy of the Clerk's post, the President of the Court of Appeal, after consulting the Presidium, designates among the staff of the Juridiction the person responsible for performing the functions of Clerk.
ARTICLE 23
Clerk ' s functions
1. The Clerk attends the Jurisdiction, the President of the Court of Appeal, the President of the Court of First Instance and the judges in the performance of their duties. He is responsible for the organization and activities of the Registry, under the authority of the President of the Court of Appeal.
2. The Clerk is responsible for:
(a) maintain the registry of all cases brought before the Jurisdiction;
(b) maintain and administer the lists established pursuant to section 18, section 48, paragraph 3, and section 57, paragraph 2, of the agreement;
(c) maintain and publish a list of notifications and withdrawals of derogation decisions in accordance with Article 83 of the agreement;
(d) publish the Jurisdiction decisions, subject to the protection of confidential information;
(e) publish annual reports with statistical data; and
(f) ensure that information relating to derogation decisions made in accordance with Article 83 of the Agreement is notified to the European Patent Office.
ARTICLE 24
Record keeping
1. Detailed rules relating to the keeping of the registry of the Jurisdiction are set out in the rules governing the transplant adopted by the presidium.
2. The rules relating to access to Registry documents are set out in the Rules of Procedure.
ARTICLE 25
Assistant Deputy Registrar
1. A deputy clerk is appointed for a term of six years by the presidium. He can be reappointed.
2. The provisions of section 22, paragraphs 2 to 6, apply by analogy.
3. The Deputy Clerk is responsible for the organization and activities of the sub-greffes under the authority of the Clerk and the President of the Court of First Instance.
The functions of the Assistant Clerk include in particular:
(a) keeping records of all cases brought before the Court of First Instance;
(b) notification to the court of each case brought before the court of first instance.
4. The Assistant Clerk also provides administrative assistance and secretariat assistance to the Trial Court divisions.
CHAPTER III - FINANCIAL PROVISIONS
ARTICLE 26
Budget
1. The budget was adopted by the budget committee on the proposal of the presidium. It is established in accordance with generally accepted accounting principles, as defined in the Financial Regulations, as determined in accordance with section 33.
2. Inside the budget, the presidium may, in accordance with the financial regulations, transfer credits between the different headings or sub-headings.
3. The Clerk is responsible for the execution of the budget in accordance with the Financial Regulations.
4. Each year, the Clerk shall prepare a statement on the performance of the budget for the past year, which is approved by the presidium.
ARTICLE 27
Expenditure authority
1. Expenditures on the budget are authorized for the fiscal year, unless otherwise provided by the Financial Regulations.
2. In accordance with the Financial Regulations, credits that are not used at the end of the fiscal year, with the exception of those relating to staff costs, may be deferred to be limited to the following fiscal year alone.
3. Provision is made under different headings according to the type and destination of expenditure and is subdivided, to the extent necessary, in accordance with the financial regulations.
ARTICLE 28
Unpredictable expenditure
1. Unpredictable expenses may be included in the Juridiction budget.
2. The use of these credits by the Jurisdiction is subject to the prior authorization of the Budget Committee.
ARTICLE 29
Fiscal year
The fiscal year begins on 1er January and ends on December 31.
ARTICLE 30
Budget preparation
The presidium shall submit the draft budget of the Jurisdiction to the Budget Committee no later than the date fixed by the Financial Regulations.
ARTICLE 31
Interim budget
1. If, at the beginning of a fiscal year, the budget has not yet been determined by the Budget Committee, the expenditures may be made monthly by item or by another budget subdivision, in accordance with the Financial Regulations, within one-twelfth of the budget appropriations for the previous year, without the effect of this measure being able to make available to the presidium credits greater than one-twelfth of the budget estimates.
2. The budget committee may, subject to compliance with the other conditions set out in paragraph 1 above, authorize expenditures exceeding one-twelfth of the appropriations for the previous fiscal year.
ARTICLE 32
Audit
1. The annual financial statements of the Jurisdiction are reviewed by independent auditors. The auditors are appointed and, if necessary, relieved of their functions by the budget committee.
2. The audit, which takes place on the basis of professional auditing standards and, where necessary, establishes the legality and regularity of the performance of the budget and ensures that the Jurisdiction was administered financially in accordance with the principles of economy and good financial management. The auditors shall prepare after the closure of each financial year a report that contains a signed audit certification.
3. The presidium shall submit to the budget committee the annual financial statements of the Jurisdiction and the annual performance statement for the previous year, together with the report of the auditors.
4. The budget committee approves the annual accounts as well as the report of the auditors and discharges the presidium for the performance of the budget.
ARTICLE 33
Financial regulations
1. The Financial Regulations are adopted by the Administrative Committee. It is amended by the Administrative Committee on the proposal of the Jurisdiction.
2. The financial regulations include:
(a) the terms and conditions for the preparation and execution of the budget, as well as the accountability and audit of the accounts;
(b) the terms and procedure under which payments and contributions, including initial financial contributions, provided for in Article 37 of the Agreement are made available to the Jurisdiction;
(c) the rules relating to the responsibilities of ordering officers and accountants and the terms and conditions for their control; and
(d) generally accepted accounting principles based on the annual budget and financial statements.
CHAPTER IV - PROCEDURAL PROVISIONS
ARTICLE 34
Secret of deliberations
The deliberations of the Jurisdiction are and remain secret.
ARTICLE 35
Decisions
1. When a chamber sits in a formation composed of a number of judges, the Jurisdiction shall rule by a majority of the members composing the chamber. In the event of an equal vote, the president's vote is preponderant.
2. In the event of an incapacity of one of the judges composing a Chamber, a judge may be appealed to another chamber in accordance with the Rules of Procedure.
3. In cases where these statutes provide that the Court of Appeal shall rule in plenary meeting, the decision taken shall be valid only if it is adopted by at least three quarters of the judges composing the plenary meeting.
4. The Jurisdiction decisions mention the names of the judges who ruled.
5. The decisions are signed by the judges who have ruled, as well as by the Registrar for the decisions of the Court of Appeal and by the Deputy Registrar for the decisions of the Court of First Instance. They are read in public session.
ARTICLE 36
Dissenting opinions
A dissenting opinion expressed separately by a judge of a chamber in accordance with Article 78 of the agreement is reasoned, written and signed by the judge expressing this opinion.
ARTICLE 37
Default decision
1. At the request of a party to an action, a decision may be made by default in accordance with the rules of procedure where the other party, after being served as the introductive act or equivalent act, refrains from filing written conclusions or refrains from appearing at the hearing. The decision is subject to opposition within one month of its service to the party against which it was rendered.
2. Unless otherwise decided by the Jurisdiction, the opposition shall not suspend the execution of the default decision.
ARTICLE 38
Issues before the Court of Justice of the European Union
1. The procedures established by the Court of Justice of the European Union in the matter of preliminary referral within the European Union apply.
2. When the Court of First Instance or the Court of Appeal decided to refer the matter to the Court of Justice of the European Union concerning the interpretation of the Treaty on the European Union or the Treaty on the Functioning of the European Union, or of a question concerning the validity or interpretation of the acts adopted by the institutions of the European Union, it or it suspends the proceedings.

ANNEX II
Distribution of cases within the central division (15)

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Notes
(1) Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing the enhanced cooperation in the area of the creation of a unitary protection conferred by a patent (JOUE L 361 of 31.12.2012, p. 1), including any subsequent amendments.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 concerning judicial competence, recognition and enforcement of decisions in civil and commercial matters (JOUE L 351 of 20.12.2012, p. 1), including any subsequent amendments.
(3) Regulation (EC) No. 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary certificate of protection for medicines (JOUE L 152 of 16.6.2009, p. 1), including any subsequent amendments.
(4) Regulation (EC) No. 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the establishment of a supplementary protection certificate for phytopharmaceutical products (JOUE L 198 of 8.8.1996, p. 30), including any subsequent amendments.
(5) Regulation (EC) No 593/2008 of the European Parliament and Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (JOUE L 177 of 4.7.2008, p. 6), including any subsequent amendments.
(6) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to contractual obligations (Rome II) (JOUE L 199 of 31.7.2007, p. 40), including any subsequent amendments.
(7) Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of a unitary protection conferred by a patent, with respect to the terms and conditions applicable to translation (JOUE L 361 of 31.12.2012, p. 89), including any subsequent amendment.
(8) Directive 2001/82/EC of the European Parliament and the Council of 6 November 2001 establishing a Community Code on Veterinary Drugs (JOCE L 311 of 28.11.2001, p. 1), including any subsequent amendments.
(9) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 establishing a Community Code for Human Drugs (JOCE L 311 of 28.11.2001, p. 67), including any subsequent amendments.
(10) International Civil Aviation Organization (ICAO), Chicago Convention, document 7300/9 (9th edition, 2006).
(11) Council Regulation (EC) No. 2100/94 of 27 July 1994 establishing a Community Plant Breeding Protection Regime (JOCE L 227 of 1.9.1994, p. 1), including any subsequent amendments.
(12) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programmes (JOUE L 111 of 5.5.2009, p. 16), including any subsequent amendments.
(13) Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions (JOCE L 213 of 30.7.1998, p. 13), including any subsequent amendments.
(14) Convention on Jurisdiction, Recognition and Enforcement of Decisions in Civil and Commercial Matters, signed on 30 October 2007, including any subsequent amendments.
(15) The eight-section classification (A-H) is based on the International Patent Classification of the World Intellectual Property Organization (http://www.wipo.int/classifications/ipc/en/).

AGREEMENT
ON A UNIFIED PATENT COURT
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), 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 quoteed 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 preliminary request 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 law case 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 No 1215/2012(2) 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 :
(a) "Court" means the Unified Patent Court created by this Agreement.
(b) "Member State" means a Member State of the European Union.
(c) "Contracting Member State" means a Member State party to this Agreement.
(d) "EPC" means the Convention on the Grant of European Patents of 5 October 1973, including any subsequent amendments.
(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.
(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.
(g) "Patent" means a European patent and/or a European patent with unitary effect.
(h) "Supplementary protection certificate" means a supplementary protection certificate granted under Regulation (EC) No 469/2009(3) or under Regulation (EC) No 1610/96(4).
(i) "Statute" means the Statute of the Court as set out in Annex I, which shall be an integral part of this Agreement.
(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:
(a) European patent with unitary effect;
(b) supplementary protection certificate issued for a product protected by a patent;
(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
(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) (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) (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 patent hundred 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 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:
(a) assist the Administrative Committee in the preparation of the appointment of judges of the Court;
(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
(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 :
(a) internships in national patent courts or divisions of the Court of First Instance hearing a substantial number of patent litigation cases;
(b) improvement of linguistic skills;
(c) technical aspects of patent law;
(d) the dissemination of knowledge and experience in civil procedure for technically qualified judges;
(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 :
(a) Union law, including Regulation (EU) No. 1257/2012 and Regulation (EU) No. 1260/2012(7);
(b) this Agreement;
(c) the EPC;
(d) other international agreements applicable to patents and binding on all the Contracting Member States; and
(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:
(a) by directly applicable provisions of Union law containing private international law rules, or
(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; gold
(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:
(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;
(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;
(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 effect, that those means are suitable and
(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:
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes relating to the subject matter of the patented invention;
(c) the use of biological material for the purpose of breeding, or discovering and developing other plant varieties;
(d) the acts allowed pursuant to Article 13(6) of Directive 2001/82/EC(8) or Article 10(6) of Directive 2001/83/EC(9) in respect of any patent covering the product within the meaning of either of those Directives;
(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;
(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 vessel;
(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;
(h) the acts specified in Article 27 of the Convention on International Civil Aviation of 7 december 1944(10), 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;
(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);
(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;
(k) the acts and the use of the obtained information as allowed under Articles 5 and 6 of Directive 2009/24/EC(12), in particular, by its provisions on decompilation and interoperability; and
(l) the acts allowed pursuant to Article 10 of Directive 98/44/EC(13).
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 marketing 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).
ARTICLE 32
Competence of the Court
(1) The Court shall have exclusive competence in respect of:
(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;
(b) actions for declarations of non-infringement of patents and supplementary protection certificates;
(c) actions for provisional and protective measures and injunctions;
(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; gold
(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; gold
(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 organizations, universities and public research organizations 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 precedinging 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 Member
(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 - ORGANIZATION AND PROCEDURAL PROVISIONS
CHAPTER I - GENERAL PROVISIONS
ARTICLE 40
Statute
(1) The Statute shall lay down the details of the organization 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 knowing 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 ugly 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
Short 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 beginning 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 beginning 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 beginning 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 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; gold
(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; gold
(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; gold
(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 contributionioned 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; gold
(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 2000 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.
ANNEX I
STATUTE OF THE UNIFIED PATENT COURT
ARTICLE 1
Scope of the Statute
This Statute contains institutional and financial arrangements for the Unified Patent Court as established under Article 1 of the Agreement.
CHAPTER I - JUDGES
ARTICLE 2
Eligibility of judges
(1) Any person who is a national of a Contracting Member State and fulfils the conditions set out in Article 15 of the Agreement and in this Statute may be appointed as a judge.
(2) Judges shall have a good command of at least one official language of the European Patent Office.
(3) Experience with patent litigation which has to be proven for the appointment pursuant to Article 15(1) of the Agreement may be acquired by training under Article 11(4)(a) of this Statute.
ARTICLE 3
Appointment of judges
(1) Judges shall be appointed pursuant to the procedure set out in Article 16 of the Agreement.
(2) Vacancies shall be publicly advertised and shall indicate the relevant eligibility criteria as set out in Article 2. The Advisory Committee shall give an opinion on candidates' suitability to perform the duties of a judge of the Court. The opinion shall comprise a list of most suitable candidates. The list shall contain at least twice as many candidates as there are vacancies. Where necessary, the Advisory Committee may recommend that, prior to the decision on the appointment, a candidate judge receive training in patent litigation pursuant to Article 11(4)(a).
(3) When appointing judges, the Administrative Committee shall ensure the best legal and technical expertise and a balanced composition of the Court on as broad a geographical basis as possible among nationals of the Contracting Member States.
(4) The Administrative Committee shall appoint as many judges as are needed for the proper functioning of the Court. The Administrative Committee shall initially appoint the necessary number of judges for setting up at least one panel in each of the divisions of the Court of First Instance and at least two panels in the Court of Appeal.
(5) The decision of the Administrative Committee appointing full-time or part-time legally qualified judges and full-time technically qualified judges shall state the instance of the Court and/or the division of the Court of First Instance for which each judge is appointed and the field(s) of technology for which a technically qualified judge is appointed.
(6) Part-time technically qualified judges shall be appointed as judges of the Court and shall be included in the Pool of Judges on the basis of their specific qualifications and experience. The appointment of these judges to the Court shall ensure that all fields of technology are covered.
ARTICLE 4
Judges' term of office
(1) Judges shall be appointed for a term of six years, beginning on the date laid down in the instrument of appointment. They may be re-appointed.
(2) In the absence of any provision regarding the date, the term shall begin on the date of the instrument of appointment.
ARTICLE 5
Appointment of the members of the Advisory Committee
(1) Each Contracting Member State shall propose a member of the Advisory Committee who fulfils the requirements set out in Article 14(2) of the Agreement.
(2) The members of the Advisory Committee shall be appointed by the Administrative Committee acting by common accord.
ARTICLE 6
Oath
Before taking up their duties judges shall, in open court, take an oath to perform their duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court.
ARTICLE 7
Impartiality
(1) Immediately after taking their oath, judges shall sign a declaration by which they solemnly undertake that, both during and after their term of office, they shall respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits.
(2) Judges may not take part in the proceedings of a case in which they:
(a) have taken part as adviser;
(b) have been a party or have acted for one of the parties;
(c) have been called upon to pronounce as a member of a court, tribunal, board of appeal, arbitration or mediation panel, a commission of inquiry or in any other capacity;
(d) have a personal or financial interest in the case or in relation to one of the parties; gold
(e) are related to one of the parties or the representatives of the parties by family ties.
(3) If, for some special reason, a judge considers that he or she should not take part in the judgement or examination of a particular case, that judge shall so inform the President of the Court of Appeal accordingly or, in the case of judges of the Court of First Instance, the President of the Court of First Instance. If, for some special reason, the President of the Court of Appeal or, in the case of judges of the Court of First Instance, the President of the Court of First Instance considers that a judge should not sit or make submissions in a particular case, the President of the Court of Appeal or the President of the Court of First Instance shall justify this in writing and notify the judge concerned accordingly.
(4) Any party to an action may object to a judge taking part in the proceedings on any of the grounds listed in paragraph 2 or where the judge is suspected, with good reason, of partiality.
(5) Any difficulty arising as to the application of this Article shall be settled by decision of the Presidium, in accordance with the Rules of Procedure. The judge concerned shall be heard but shall not take part in the deliberations.
ARTICLE 8
Immunity of judges
(1) The judges shall be immune from legal proceedings. After they have ceased to hold office, they shall continue to enjoy immunity in respect of acts performed by them in relation to their official capacity.
(2) The Presidium may waive the immunity.
(3) Where immunity has been waived and criminal proceedings are instituted against a judge, that judge shall be tried, in any of the Contracting Member States, only by the court competent to judge the members of the highest national judiciary.
(4) The Protocol on the privileges and immunities of the European Union shall apply to the judges of the Court, without prejudice to the provisions relating to immunity from legal proceedings of judges which are set out in this Statute.
ARTICLE 9
End of duties
(1) Apart from replacement after expiry of a judge's term pursuant to Article 4, or death, the duties of a judge shall end when that judge resigns.
(2) Where a judge resigns, the letter of resignation shall be addressed to the President of the Court of Appeal or, in the case of judges of the Court of First Instance, the President of the Court of First Instance for transmission to the Chairman of the Administrative Committee.
(3) Save where Article 10 applies, a judge shall continue to hold office until that judge's successor takes up his or her duties.
(4) Any vacancy shall by filled by the appointment of a new judge for the remainder of his or her predecessor's term.
ARTICLE 10
Removal from office
(1) A judge may be deprived of his or her office or of other benefits only if the Presidium decides that judge no longer fulfils the requisite conditions or meets the obligations arising from his or her office. The judge concerned shall be heard but shall not take part in the deliberations.
(2) The Registrar of the Court shall communicate this decision to the Chairman of the Administrative Committee.
(3) In the case of a decision depriving a judge of his or her office, a vacancy shall arise upon that notification.
ARTICLE 11
Training
(1) Appropriate and regular training of judges shall be provided for within the training framework set up under Article 19 of the Agreement. The Presidium shall adopt Training Regulations ensuring the implementation and overall coherence of the training framework.
(2) The training framework shall provide a platform for the exchange of expertise and a forum for discussion, in particular by :
(a) organising races, conferences, seminars, workshops and symposia;
(b) cooperating with international organisations and education institutes in the field of intellectual property; and
(c) promoting and supporting further vocational training.
(3) An annual work programme and training guidelines shall be drawn up, which shall include for each judge an annual training plan identifying that judge's main training needs in accordance with the Training Regulations.
(4) The training framework shall in addition :
(a) ensure appropriate training for candidate-judges and newly appointed judges of the Court;
(b) support projects aimed at facilitating cooperation between representatives, patent attorneys and the Court.
ARTICLE 12
Remuneration
The Administrative Committee shall set the remuneration of the President of the Court of Appeal, the President of the Court of First Instance, the judges, the Registrar, the Deputy-Registrar and the staff.
CHAPTER II - ORGANIZATIONAL PROVISIONS
SECTION 1 - COMMON PROVISIONS
ARTICLE 13
President of the Court of Appeal
(1) The President of the Court of Appeal shall be elected by all judges of the Court of Appeal for a term of three years, from among their number. The President of the Court of Appeal may be re-elected twice.
(2) The elections of the President of the Court of Appeal shall be by secret ballot. A judge obtaining an absolute majority shall be elected. If no judge obtains an absolute majority, a second ballot shall be held and the judge obtaining the most votes shall be elected.
(3) The President of the Court of Appeal shall direct the judicial activities and the administration of the Court of Appeal and chair the Court of Appeal sitting as a full Court.
(4) If the office of the President of the Court of Appeal falls vacant before the date of expiry of his or her term, a successor shall be elected for the remainder thereof.
ARTICLE 14
President of the Court of First Instance
(1) The President of the Court of First Instance shall be elected by all judges of the Court of First Instance who are full-time judges, for a term of three years, from among their number. The President of the Court of First Instance may be re-elected twice.
(2) The first President of the Court of First Instance shall be a national of the Contracting Member State hosting the seat of the central division.
(3) The President of the Court of First Instance shall direct the judicial activities and the administration of the Court of First Instance.
(4) Article 13(2) and (4), shall by analogy apply to the President of the Court of First Instance.
ARTICLE 15
Presidium
(1) The Presidium shall be composed of the President of the Court of Appeal, who shall act as chairperson, the President of the Court of First Instance, two judges of the Court of Appeal elected from among their number, three judges of the Court of First Instance who are full-time judges of the Court elected from among their number, and the Registrar as a non-voting member.
(2) The Presidium shall exercise its duties in accordance with this Statute. It may, without prejudice to its own responsibility, delegate certain tasks to one of its members.
(3) The Presidium shall be responsible for the management of the Court and shall in particular:
(a) draw up proposals for the amendment of the Rules of Procedure in accordance with Article 41 of the Agreement and proposals regarding the Financial Regulations of the Court;
(b) prepare the annual budget, the annual accounts and the annual report of the Court and submit them to the Budget Committee;
(c) establish the guidelines for the training programme for judges and supervise the implementation thereof;
(d) take decisions on the appointment and removal of the Registrar and the Deputy-Registrar;
(e) lay down the rules governing the Registry including the sub-registries;
(f) give an opinion in accordance with Article 83(5) of the Agreement.
(4) Decisions of the Presidium referred to in Articles 7, 8, 10 and 22 shall be taken without the participation of the Registrar.
(5) The Presidium can take valid decisions only when all members are present or duly represented. Decisions shall be taken by a majority of the votes.
ARTICLE 16
Staff
(1) The officials and other servants of the Court shall have the task of assisting the President of the Court of Appeal, the President of the Court of First Instance, the judges and the Registrar. They shall be responsible to the Registrar, under the authority of the President of the Court of Appeal and the President of the Court of First Instance.
(2) The Administrative Committee shall establish the Staff Regulations of officials and other servants of the Court.
ARTICLE 17
Judicial vacations
(1) After consulting the Presidium, the President of the Court of Appeal shall establish the duration of judicial vacations and the rules on observing official holidays.
(2) During the period of judicial vacations, the functions of the President of the Court of Appeal and of the President of the Court of First Instance may be exercised by any judge invited by the respective President to that effect. In cases of urgency, the President of the Court of Appeal may convene the judges.
(3) The President of the Court of Appeal or the President of the Court of First Instance may, in proper circumstances, grant leave of absence to respectively judges of the Court of Appeal or judges of the Court of First Instance.
SECTION 2 - THE COURT OF FIRST INSTANCE
ARTICLE 18
Setting up and discontinuance of a local or regional division
(1) A request from one or more Contracting Member States for the setting up of a local or regional division shall be addressed to the Chairman of the Administrative Committee. It shall indicate the seat of the local or regional division.
(2) The decision of the Administrative Committee setting up a local or regional division shall indicate the number of judges for the division concerned and shall be public.
(3) The Administrative Committee shall decide to discontinue a local or regional division at the request of the Contracting Member State hosting the local division or the Contracting Member States participating in the regional division. The decision to discontinue a local or regional division shall state the date after which no new cases may be brought before the division and the date on which the division will cease to exist.
(4) As from the date on which a local or regional division ceases to exist, the judges assigned to that local or regional division shall be assigned to the central division, and cases still pending before that local or regional division together with the sub-registry and all of its documentation shall be transferred to the central division.
ARTICLE 19
Panels
(1) The allocation of judges and the assignment of cases within a division to its panels shall be governed by the Rules of Procedure. One judge of the panel shall be designated as the presiding judge, in accordance with the Rules of Procedure.
(2) The panel may delegate, in accordance with the Rules of Procedure, certain functions to one or more of its judges.
(3) A standing judge for each division to hear urgent cases may be designated in accordance with the Rules of Procedure.
(4) In cases where a single judge in accordance with Article 8(7) of the Agreement, or a standing judge, in accordance with paragraph 3 of this Article, hears a case that judge shall carry out all functions of a panel.
(5) One judge of the panel shall act as Rapporteur, in accordance with the Rules of Procedure.
ARTICLE 20
Pool of Judges
(1) A list with the names of the judges included in the Pool of Judges shall be drawn up by the Registrar. In relation to each judge, the list shall at least indicate the linguistic skills, the field of technology and experience of, as well as the cases previously handled by, that judge.
(2) A request addressed to the President of the Court of First Instance to assign a judge from the Pool of Judges shall indicate, in particular, the subject matter of the case, the official language of the European Patent Office used by the judges of the panel, the language of the proceedings and the field of technology required.
SECTION 3 - THE COURT OF APPEAL
ARTICLE 21
Panels
(1) The allocation of judges and the assignment of cases to panels shall be governed by the Rules of Procedure. One judge of the panel shall be appointed as the presiding judge, in accordance with the Rules of Procedure.
(2) When a case is of exceptional importance, and in particular when the decision may affect the unity and consistency of the case law of the Court, the Court of Appeal may decide, on the basis of a proposal from the presiding judge, to refer the case to the full Court.
(3) The panel may delegate, in accordance with the Rules of Procedure, certain functions to one or more of its judges.
(4) One judge of the panel shall act as Rapporteur, in accordance with the Rules of Procedure.
SECTION 4 - THE REGISTRY
ARTICLE 22
Appointment and removal from office of the Registrar
(1) The Presidium shall appoint the Registrar of the Court for a term of six years. The Registrar may be re-appointed.
(2) Two weeks before the date fixed for appointing the Registrar, the President of the Court of Appeal shall inform the Presidium of the applications which have been submitted for the post.
(3) Before taking up his or her duties, the Registrar shall take oath before the Presidium to perform the duties of the Registrar impartially and conscientiously.
(4) The Registrar may be removed from office only if the Registrar no longer meets the obligations arising from his or her office. The Presidium shall take its decision after having heard the Registrar.
(5) If the office of the Registrar falls vacant before the date of expiry of the term thereof, the Presidium shall appoint a new Registrar for a term of six years.
(6) If the Registrar is absent or prevented from attending or such post is vacant, the President of the Court of Appeal after having consulted the Presidium shall designate a member of the staff of the Court to carry out the duties of the Registrar.
ARTICLE 23
Duties of the Registrar
(1) The Registrar shall assist the Court, the President of the Court of Appeal, the President of the Court of First Instance and the judges in the performance of their functions. The Registrar shall be responsible for the organization and activities of the Registry under the authority of the President of the Court of Appeal.
(2) The Registrar shall in particular be responsible for:
(a) keeping the register which shall include records of all cases before the Court;
(b) keeping and administering lists drawn up in accordance with Articles 18, 48(3) and 57(2) of the Agreement;
(c) keeping and publishing a list of notifications and withdrawals of opt-outs in accordance with Article 83 of the Agreement;
(d) publishing the decisions of the Court, subject to the protection of confidential information;
(e) publishing annual reports with statistical data; and
(f) ensuring that the information on opt-outs in accordance with Article 83 of the Agreement is notified to the European Patent Office.
ARTICLE 24
Keeping of the register
(1) Detailed rules for keeping the register of the Court shall be prescribed in the Rules governing the Registry, adopted by the Presidium.
(2) The rules on access to documents of the Registry shall be provided for in the Rules of Procedure.
ARTICLE 25
Sub-registries and Deputy-Registrar
(1) A Deputy-Registrar shall be appointed for a term of six years by the Presidium. The Deputy-Registrar may be re-appointed.
(2) Section 22(2) to (6) shall apply by analogy.
(3) The Deputy-Registrar shall be responsible for the organization and activities of sub-registries under the authority of the Registrar and the President of the Court of First Instance. The duties of the Deputy-Registrar shall in particular include:
(a) keeping records of all cases before the Court of First Instance;
(b) notifying every case before the Court of First Instance to the Registry.
(4) The Deputy-Registrar shall also provide administrative and secretarial assistance to the divisions of the Court of First Instance.
CHAPTER III - FINANCIAL PROVISIONS
ARTICLE 26
Budget
(1) The budget shall be adopted by the Budget Committee on a proposal from the Presidium. It shall be drawn up in accordance with the generally accepted accounting principles laid down in the Financial Regulations, established in accordance with Article 33.
(2) Within the budget, the Presidium may, in accordance with the Financial Regulations, transfer funds between the various headings or subheadings.
(3) The Registrar shall be responsible for the implementation of the budget in accordance with the Financial Regulations.
(4) The Registrar shall annually make a statement on the accounts of the preceding financial year relating to the implementation of the budget which shall be approved by the Presidium.
ARTICLE 27
Authorization for expenditure
(1) The expenditure entered in the budget shall be authorised for the duration of one accounting period unless the Financial Regulations provide otherwise.
(2) In accordance with the Financial Regulations, any appropriations, other than those relating to staff costs, which are unexpended at the end of the accounting period may be carried forward, but not beyond the end of the following accounting period.
(3) Appropriations shall be set out under different headings according to type and purpose of the expenditure, and subdivided, to the extent necessary, in accordance with the Financial Regulations.
ARTICLE 28
Appropriations for unforeseeable expenditure
(1) The budget of the Court may include appropriations for unforeseeable expenditure.
(2) The employment of these appropriations by the Court shall be subject to the prior approval of the Budget Committee.
ARTICLE 29
Accounting period
The accounting period shall start on 1 January and end on 31 December.
ARTICLE 30
Preparation of the budget
The Presidium shall submit the draft budget of the Court to the Budget Committee no later than the date prescribed in the Financial Regulations.
ARTICLE 31
Provisional budget
(1) If, at the beginning of the accounting period, the budget has not been adopted by the Budget Committee, expenditure may be effected on a monthly basis per heading or other division of the budget, in accordance with the Financial Regulations, up to one-twelfth of the budget appropriations for the preceding accounting period, provided that the appropriations thus made available to the Presidium do not exceed one-twelfth of those provided for in the draft budget.
(2) The Budget Committee may, subject to the observance of the other provisions laid down in paragraph 1, authorise expenditure in excess of one-twelfth of the budget appropriations for the preceding accounting period.
ARTICLE 32
Auditing of accounts
(1) The annual financial statements of the Court shall be examined by independent auditors. The auditors shall be appointed and if necessary dismissed by the Budget Committee.
(2) The audit, which shall be based on professional auditing standards and shall take place, if necessary, in situ, shall ascertain that the budget has been implemented in a lawful and proper manner and that the financial administration of the Court has been conducted in accordance with the principles of economy and sound financial management. The auditors shall draw up a report after the end of each accounting period containing a signed audit opinion.
(3) The Presidium shall submit to the Budget Committee the annual financial statements of the Court and the annual budget implementation statement for the preceding accounting period, together with the auditors' report.
(4) The Budget Committee shall approve the annual accounts together with the auditors' report and shall discharge the Presidium in respect of the implementation of the budget.
ARTICLE 33
Financial Regulations
(1) The Financial Regulations shall be adopted by the Administrative Committee. They shall be amended by the Administrative Committee on a proposal from the Court.
(2) The Financial Regulations shall lay down in particular:
(a) arrangements relating to the establishment and implementation of the budget and for the rendering and auditing of accounts;
(b) the method and procedure whereby the payments and contributions, including the initial financial contributions provided for in Article 37 of the Agreement are to be made available to the Court;
(c) the rules concerning the responsibilities of authorising and accounting officers and the arrangements for their supervision; and
(d) the generally accepted accounting principles on which the budget and the annual financial statements are to be based.
CHAPTER IV - PROCEDURAL PROVISIONS
ARTICLE 34
Secrecy of deliberations
The deliberations of the Court shall be and shall remain secret.
ARTICLE 35
Decisions
(1) When a panel sits in composition of an even number of judges, decisions of the Court shall be taken by a majority of the panel. In case of equal vote, the vote of the presiding judge shall prevail.
(2) In the event of one of the judges of a panel being prevented from attending, a judge from another panel may be called upon to sit in accordance with the Rules of Procedure.
(3) In cases where this Statute provides that the Court of Appeal shall take a decision sitting as a full court, such decision shall be valid only if it is taken by at least 3/4 of the judges comprising the full court.
(4) Decisions of the Court shall contain the names of the judges deciding the case.
(5) Decisions shall be signed by the judges deciding the case, by the Registrar for decisions of the Court of Appeal, and by the Deputy-Registrar for decisions of the Court of First Instance. They shall be read in open court.
ARTICLE 36
Dissenting opinions
A dissenting opinion expressed separately by a judge of a panel in accordance with Article 78 of the Agreement shall be reasoned, given in writing and shall be signed by the judge expressing this opinion.
ARTICLE 37
Decision by default
(1) At the request of a party to an action, a decision by default may be given in accordance with the Rules of Procedure, where the other party, after having been served with a document instituting proceedings or with an equivalent document, fails to file written submissions in defence or fails to appear at the oral hearing. An objection may be lodged against that decision within one month of it being notified to the party against which the default decision has been given.
(2) The objection shall not have the effect of staying enforcement of the decision by default unless the Court decides otherwise.
ARTICLE 38
Questions referred to the Court of Justice of the European Union
(1) The procedures established by the Court of Justice of the European Union for referrals for preliminary rulings within the European Union shall apply.
(2) Whenever the Court of First Instance or the Court of Appeal has decided to refer to the Court of Justice of the European Union a question of interpretation of the Treaty on European Union or of the Treaty on the Functioning of the European Union or a question on the validity or interpretation of acts of the institutions of the European Union, it shall stay proceedings.

ANNEX II
Distribution of cases within the central division (15)

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Footnotes
(1) Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 december 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJEU L 361, 31.12.2012, p. 1) including any subsequent amendments.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 december 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJEU L 351, 20.12.2012, p. 1) including any subsequent amendments.
(3) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, (OJEU L 152, 16.6.2009, p.1) including any subsequent amendments.
(4) Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary certificate for plant protection products, (OJEC L 198, 8.8.1996, p.30) including any subsequent amendments.
(5) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJEU L 177, 4.7.2008, p. 6) including any subsequent amendments.
(6) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJEU L 199, 31.7.2007, p. 40) including any subsequent amendments.
(7) Council Regulation (EU) No 1260/2012 of 17 december 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (OJEU L 361, 31.12.2012, p. 89) including any subsequent amendments.
(8) Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (OJEC L 311, 28.11.2001, p. 1) including any subsequent amendments.
(9) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJEC L 311, 28.11.2001, p. 67) including any subsequent amendments.
(10) International Civil Aviation Organization (ICAO), "Chicago Convention", Document 7300/9 (9th edition, 2006).
(11) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJEC L 227, 1.9.1994, p. 1) including any subsequent amendments.
(12) Directive 2009/24/EC of the European Parliament and of the Council of 23 april 2009 on the legal protection of computer programs (OJEU L 111, 05/05/2009, p. 16) including any subsequent amendments.
(13) Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJEC L 213, 30.7.1998, p. 13) including any subsequent amendments.
(14) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, done at Lugano on 30 October 2007, including any subsequent amendments.
(15) The classification into 8 sections (A to H) is based on the International Patent Classification of the World Intellectual Property Organisation (http ://www.wipo.int/classifications/ipc/en).

LIST OF LIES