There is no obligation to impose criminal liability for patent infringement under art 61 of TRIPs or indeed any other convention. The proposal has already been thrown out once. Our government doesn't want it. Neither do most of the member states. Industry doesn't want it. The profession (or at least my branch of it) doesn't want it. The courts don't want it. Indeed, when I discussed the proposal with the Great Man yesterday, not even Miles Rees of the Patent Office could think of anybody who was for it.
Hallelujah! Our Euro-parliamentarians seem to have shown some sense. In its draft report on
on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights the Legal Affairs Committee chose to define "intellectual property rights" for the purpose of this directive: as
"one or more of the following rights:
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights,
- design rights,
- trade names, in so far as these are protected as exclusive property rights in the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights1;"
Explaining the reason for the amendment, the rapporteur writes that applying criminal penalties to infringements of patent rights does not seem to be either particularly appropriate in itself, or consistent with the approach followed in recent years by the Community legislator.
Even this goes a little bit further than I would have it. I do not see any useful purpose in extending criminal liability for infringing design rights, particularly not chip topographies. But the idea of the jury in the Crown Court construing a patent claim (or the directions they would receive from the trial judge) fills me with dread.