a group of 26 european patent judges have unanimously agreed on rules of procedure for a planned european patent court.

following a meeting in venice organized by the epo and the european patent lawyers association (eplaw) last week, the judges issued a document on november 4 proposing procedural guidelines for the executive committee of the proposed european patent court to consider.

the guidelines, which run to 11 pages, were drawn up by a small committee of judges chaired by lord justice jacob of the court of appeal in london and including representatives from england, germany, the netherlands, france and italy.

this so-called second venice resolution follows a resolution a year ago at which the judges backed the creation of a european patent court through the european patent litigation agreement (epla).

the epla was drafted in november 2003 to provide a single cost-effective forum for litigating european patent disputes, and a detailed version of the agreement, incorporating some changes, was published in december 2005.

but the agreement has not yet been implemented. last month the european parliament backed the proposal but identified concerns over what the rules of procedure would be.

the judges have addressed some of those concerns by setting out an extensive draft of rules covering the service of proceedings, general structure of proceedings and case management (including written phase, interim phase and oral hearing), protective measures or saisies, provisional measures (preliminary injunctions, ex parte and inter partes injunctions), damages, appeals, enforcement and competence.

kevin mooney, a partner of simmons & simmons and president of eplaw, said the proposed procedures are "much more continental than british" with oral hearings designed to be concluded in just one day. "it is a very front-loaded procedure, with the arguments and evidence up front, not at the last stage."

the procedures provide for a meeting between the parties and a rapporteur judge at an early stage followed by a short oral procedure before at least three judges.

the draft rules propose that while expert evidence and cross-examination will be allowed, it will be limited. the statement says: "oral testimony at or before the oral hearing should be limited to disputes identified by the judge rapporteur or the panel of judges as having to be decided by oral evidence ... experts however should be present at all hearings and be available for questioning by the court or the parties. questioning shall be under the control of the court and shall be limited to what is strictly necessary."

it adds that the judges should aim to give their written judgment within three months of the oral hearing, and that the court should "endeavour to give a judgment without dissenting opinion".

they also comment on some "subsidiary principles" including the nationality of judges, the limitation period for damages and the joinder of third parties.

the judges recommend that lawyers registered to act before the court should be "attorneys at law who are fully entitled to represent parties in ordinary civil proceedings in the courts of first instance of the convention states".

they add that court fees should be set at a level that does not deter litigants: "the level of fees should not be such as to restrict access to the european patent court to small and medium size companies." and they said that the location of the court's central chamber "should be readily accessible to all parts of europe".

the epla proposes that the european patent court have one central chamber but that the creation of regional chambers in any member state would also be allowed. these chambers would compete for cases. a number of judges are believed to favour paris as the site of the central chamber.

mooney said the procedural rules should lead to more affordable litigation that will be attractive for both smes and multinationals: "it should be a fairer, more just and more sensible procedure for the patent community at large."

the european commission is due to announce its proposals on the epla and a community patent on november 22. internal market commissioner charlie mccreevy has previously indicated that the commission would support the epla and the london agreement on epo translations as a means of promoting innovation in europe. but it is unclear whether the commission would want to play a role in supervising the court.

if the commission backs the judges' latest proposals, a diplomatic conference could be held next year, and the court could be established before 2010.(this article is free access as part of mip week.)