02 February 2007

Patents: Sir Robin Jacob's Talk to the IPBA 10 Jan 2007

A few years ago Sean Dennehey gave a talk to the IP Bar Association on proposals for a Community patent and a European Patent Litigation Agreement (EPLA). At that time the Community patent proposal was in the ascendancy and the only people who seemed to be interested in the EPLA were the Swiss intellectual property office.

Now all that is changed. The Community patent is in limbo while the EPLA has its own mini-website on the European Patent Office portal and even the EC Commissioner in charge of the internal market has spoken up for the EPLA (see Charlie McCreevy "IPR The Next Steps" ECOFIN 8 Sep 2006). According to Sir Robin Jacob, the reason for ditching the Community patent is that industry will not use it because the proposed Community IP court would be quite unsuitable for inter partes patent litigation. There is now a head of steam in favour of the EPLA, The German presidency wants it as does the Commissioner. In Sir Robin's view, the EPLA will either be adopted quickly and up and running by 2010 or it will be kicked into touch for 10 years.

The IPBA has now had a second talk on the EPLA. On 10 Jan 2007, Sir Robin described a forum of European patent judges which he chaired at San Servolo in November. All the English judges were there except Judge Michael Fysh QC - Lord Hoffmann, Sir Nicholas Pumfrey and Sir David Kitchin. Judging by the programme produced by their joint hosts, the European Patent Lawyers Association, they can't have had much fun. A mock trial presided over by Lord Hoffmann and a debate on the issues appear to have been the high points. Their venue had once been the site of a high class lunatic asylum where the deluded rich were once confined.

However, they did do some work. They produced the Second Vence Resolution on the principles for the rules of procedure of the proposed European patent court. This appears to be a largely civilian procedure before benches of 3 judges led by a judge-rapporteur whom Sir Robin described as a very formidable figure - even more formidable than he had been. There are some common law grafts. At least some of the elements of the overriding objective - proportionality and expedition - appear in the General Principles. While the procedure is largely written provision is made for cross-examination. Sir Robin thought that small cases might be cheaper than they are now in England but not big ones since they would require the same sort of expert evidence.

Buttering us up, Sir Robin said "we were the finest collection of patent lawyers in Europe if not the world". I will get my chambers manager to quote that when negotiating a fee. I'm not sure that our friends who practise on the US Federal Circuit or indeed in Munich, Mannheim or Paris would agree.

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