26 March 2009

Patent Litigation: Maybe we shall get a European Patents Court after all

A harmless tradition of intellectual property bloggers at this time of the year is the April Fools Spoof. On 1 April 2006 Jeremy and Illanah announced "The WIPO Space Probe".  The same day I announced the removal of the Patents Court to an industrial estate in Newport which apparently landed Miles Rees into terrible trouble with the Comptroller. Having recently appeared as counsel at the Syddfa Batent which is palatial compared to Bouverie Street and much more convenient to reach from the North and generated a photo ID security pass for me which was really flattering I am not sure that such a move would be altogether a bad idea. My favourite all time spoof is Stephen Albainy-Jenei's "Google Inc to Acquire Patent Baristas for $1.3 Billion"  on 1 April 2006 which sounded nothing life as far fetched then as it does now.

 

My April Fool's post for 2007 was the adoption of the Community Patent Regulation which no doubt sounded at the time only slightly less incredible than the pointless change of name of the Patent Office to the UK Intellectual Office which occurred the next day. One of the stumbling blocks to the Community patent has been the absence of agreement as to how such a grant would be enforced (see my article "The Community Patent: Does Anyone Still want It? The Commission Green Paper on the Community Patent" October 1997). Under the Community Patent Convention member states were to nominate one or more of their national courts as "Community patent courts" which would exercise EC wide jurisdiction as the Community trade marks and Community design courts do with Community trade marks and Community designs.   The idea that a court with little experience of IP litigation could decide issues on validity and infringement that would take effect throughout the whole EC was unattractive to many potential users.

 

The Commission's answer was to propose a Community Intellectual Property Court with exclusive jurisdiction over Community patents (see my "Community Patent Overview" of 2 March 2005). Work on those proposals has trundled on ever since culminating in a "Draft Agreement on the European Union Patent Court and draft Statute" on 4 Nov 2008.   This draft agreement has a number of interesting features the most attractive being (at least from my perspective and that of the little chaps in the North of England I advise and represent) art 44.   Para (1) of that article provides:

"A party who is a natural person and wholly or in part unable to meet the costs of the proceedings may at any time apply for legal aid. The level of and the conditions for granting of legal aid shall be laid down in the Rules of Procedure." 

This promises to undo some of the damage and injustice done by para 1 (h) of Sched. 2 to the so-called Access to Justice Act 1999 he member states of the EU are also party to the European Patent Convention. As the Commission and Council were inching (or rather millimetreing) their way towards a Community patent court, a working party on litigation established by an intergovernmental meeting in Paris of the parties to the CPC was working on a court within the framework of the EPC (see the article "EPLA - European Patent Litigation Agreement" on the EPO website). This working party has also produced a detailed agreement (see "Draft Agreement on the establishment of a European patent litigation system" if 16 April 2004).   As I said in my post on Sir Robin Jacob's talk to the IPBA on 2 Feb 2007 the EPLA was eclipsed by the EC proposal for a time but now the positions have been reversed with the EPLA the front runner.   

 

In my post on Sir Robin's talk I mentioned that the two streams appeared to be converging with warm words form the Commissioner and the German government which then held the presidency of the European Council,   Now it appears that something may be happening for which intelligence I am indebted to German patent attorney, Axel H Horns(see  Unified Patent Litigation System - Another Secret Project Of The EU Commission?”.) Mr. Horns appears to have been alerted by the agenda for a working party on Intellectual Property (patents) at the Berlaymont on 23 March 2009 which included:

 

“2. Recommendation from the Commission to the Council to authorise the Commission to open negotiations for the adoption of an Agreement creating a Unified Patent Litigation System (7927/09 PI 22 COUR 28)

- Presentation by the Commission

- Exchange of views

3. Draft Agreement on the European and Community Patents Court

- Examination of a revised text (7928/09 PI 23 COUR 29)”.

 

The resolution seems to have been adopted because Mr Horns also refers to a recommendation to the Commission in the terms of the proposal of the same date.

 

Now the Commission’s mills grind exceedingly slow but it does at least seem that they are turning.

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