For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 2 December 2011

UPDATE: Seat of future Unified Patent Court set to be agreed on Monday

Mr Waldemar Pawlak
According to the Memo and Agenda for the Competitiveness Council's  meeting on Monday, 5 December 2011 in Brussels, published this afternoon, the Polish Presidency will be putting forward for agreement the seat of the Unified Patent Court.  On Monday, members will try to obtain political agreement on this and the draft text and provisions on unitary patent protection (see earlier AmeriKat post here).   The meeting will be chaired by Mr. Waldemar Pawlak, Deputy Prime Minister and Minister of Economy for Poland and Ms. Barbara Kudrycka, Minister of Science and Higher Education of Poland.

On Monday morning at 9:30am there will be a policy debate on the proposal for the regulation implementing enhanced cooperation in the area of (1) the creation of unitary patent protection and (2)  the applicable translation arrangements . This has been classified under “legislative deliberations”.

Memo 11/364, also published on the website this afternoon, describes the background of each of Monday's scheduled debates:
"As part of the Single Market Act (IP/11/469) tabled on 13 April 2011, the European Commission presented two legislative proposals (IP/11/470) under the enhanced cooperation procedure to reduce the cost of patents in Europe by up to 80%. Once adopted, they would allow any company or individual to protect their inventions through a single European patent which would be valid in 25 Member States. The proposed regulations lay down the terms and conditions for obtaining unitary patent protection, its legal effects and the applicable translation arrangements.   
In June, the Competitiveness Council reached a political agreement on the texts of both legislative proposals. Intensive discussions with the co-legislator - European Parliament - followed. Commissioner Barnier calls on the Competitiveness Council to approve the final compromise texts as agreed in informal discussions with the Parliament and to prepare the file for final adoption in 2012."
Also on Monday, under “non-legislative deliberations” there is a further policy debate regarding the draft agreement on the Unified Patent Court and draft statute.  The Memo explained:
"Currently, patent litigation in Europe is fragmented and expensive: national patent courts only decide about the validity of European patents in relation to their territory and a patent owner needs to start court proceedings in a number of different courts in order to enforce his/her European patent on the same invention throughout Europe. This creates unnecessary costs as well as legal uncertainty. 
The Member States, together with the Commission, are determined to deliver a more cost effective, user friendly and legally secure patent system for Europe have decided to find an appropriate solution for the setting up of the Unified Patent Court as quickly as possible. 
The Polish Presidency has given high priority to the whole of the patent reform and has worked intensively to find agreement among the Member States on the setting up of a unified patent litigation system. In September, the Competitiveness Council agreed on the basic features of the Unified Patent Court and urged further progress on the remaining issues.  
The AmeriKat warming the seat
for the Unified Patent Court
At the Council on 5 December, the Polish Presidency will present for agreement a number of outstanding, politically sensitive issues including the seat of the future Unified Patent Court, financing principles, language of proceedings, the transitional period and the revision clause. An agreement on these issues would allow further work to advance on finding an overall political agreement on the whole of the patent reform by the end of this year. 
Commissioner Barnier welcomes the Polish Presidency's determination to reach political agreement on the whole of the patent reform so that new sources of growth for the European economy can be delivered through substantially reducing the costs and complexity of the European patent system. Any solution needs to be in the interest of the users of the patent system."

What the AmeriKat hopes
that the seat of the Unified
Patent Court will look like
Following calls from UK lawyers, legal associations and industry, including a letter by the Chartered Institute of Patent Attorneys (CIPA)'s President Tim Roberts published in today's London Times, the AmeriKat understands that today the UK has put in its bid for London to host the Central Division of the Unified Patent Court. The AmeriKat considers this to be a welcome and positive sign from Her Majesty's Government in the unitary patent fiasco and is hopefully indicative of the growing belief that the UK Government and Baroness Wilcox will be voicing the UK's interests and concerns regarding the proposed system; concerns that other Member States may share (i.e. such as the speed which this agreement is being rushed through). In any event, it seems that the UK government has listened to the UK's patent profession and will now hopefully be preparing itself for Monday's debate...

According to the Scotsman, we may also see a late entry in from Scotland (thanks to a dear IPKat friend for alerting the Kat to the news).  But for now, the sound you now hear is the thousands of patent lawyers, academics, judges and Kats across Europe holding their breath....

For those who enjoy the luxury of their own office, one can watch the press conference and public deliberations on Monday here and video coverage of the event here.  Now, the AmeriKat is finally going to rest...

26 comments:

MaxDrei said...

Good luck Scotland. Actually, I think it has a lot going for it. Like:

1. an unbroken Rule of Law for centuries, half way between English law and French law.

2. And therefore a counter-weight to the dominance of German law in European patent litigation

3. And operating in Scottish English, proudly and European-ly different from mid-Atlantic London English (or DC Beltway English). English is the ONLY language with which Europe can "punch its weight" in the legal world today.

4. A champion of the little countries in the EU, no lapdog of London, yet with all the power of English patent jurisprudence to draw upon.

MaxDrei said...

Afterthought. I can well imagine that a high proportion of the delegates on Monday are in an "Anywhere but Germany or England" mood. Will the Baroness then pitch for Edinburgh? Can her sherpas get that up and running in time? I wonder.

It's like oral proceedings at the EPO. Years and years elapse and then, suddenly, it's tomorrow and you think for the first time of what you should have put forward months or years earlier. Always the same, always too late. Auxiliary request refused admission. Sigh.

MaxDrei said...

And remember OHIM? The Deciders gave it to Spain, and everybody except Spain flew home to tell their people "It's Madrid". But then, back home, Spain went and gave it to Alicante.

Anonymous said...

The 'anywhere but Germany mood' is based on the unwelcome dominance arising from further centralisation of the European patent system. I'd underline 'European' in that sentence if I could as a bit of sharing of the cake would be nice.

If there really is an 'anywhere but England' mood then I'd like to understand the reasons for that, prividing they are anything other than xenophobic reasons due to the UK's resistance to further European integration on fiscal and political issues (as opposed to measures necessary for a free market with free movement of goods and people). [The founding father of the Euro has now been highly critical of the way it has been set up and managed, something many of us 'told you so' at the time.]

If we are talking about a location in the UK other than London, then fair enough, consider Edinburgh. However, I would also consider several other major UK cities including one nearer to me.

Of course, the lawyers of any member state would love to have the courts in their own backyard. The point is, however, to think practically and not completely with self-interest though with regard to sharing the institutions out sensibly and fairly. One thing that can be said about London is that it could handle the patent court and all its hangers on with ease and without any infrastructure changes other than putting a new sign on a door.

There will be other cities that could take it on too, so let them all put in their bids in response to agreed criteria (old fashioned bidding I know). The problem with this is there is always a high risk of London winning - just look at the shock from all concerned when London won the Olympics!

As for Scotland, they are not a member of the EU nor a member of the EPC. I believe the judge with experience of patent matters only works one day every other year or so. There may also be a problem in future when Scotland becomes independent and a member of the EU after the UK withdraws. Our continental friends would find themselves having to fly to Edinburgh because England will withdraw the subsidy of our fantastic inter-city train services which will therefore cease to run. As for flying, by this point the carbon tax and fuel duty will be phenomenally prohibitive. I'm sure Scotland will happily subsidise everything out of their share of North Sea oil, but by that point we'll have left a note saying "Sorry, we've emptied the wells and there is no oil left".


Most of the users of the court will be flying on from the USA, Canada, China, India, Australia, South America, Israel... We'll need an extra runway at Heathrow (london) to cope with the increased traffic.

I don't know what the current thinking is regarding the regional courts but surely the outcome will be courts in the major litigation centres of London, Paris, Dundee etc? Just how big and important would a central court need to be and how great would be the economic benefits for the city concerned? The key is for agreement on the law and procedures to be applied, much more than the location of an ivory tower. For validity this should be straightforward. More tricky for infringement though many conflicting decisions could be put down to the interpretation of the facts rather than the law.

MaxDrei said...

If I understand him aright, Anonymous counsels against Edinburgh because it would be left high and dry when the UK secedes from the EU. But then he urges London on the Deciders. His logic fails me, and might struggle to convince them.

He suggests that his "continental friends" are xenophobic but "friends" is an unfortunate choice of word that comes with much baggage in this context. Those of whom he writes are not actually his personal friends. With xenophobia, as with most other things, "It takes one to know one".

And Anonymous seems to have not a clue that the hundreds of patent cases pleaded in Germany each year (a high proportion for non-German speaking clients who plot with their litigators in English) totally dwarfs the puny number of cases in the patent courts of England.

Anonymous said...

MaxDrei - Do you have the stats on the number of patent cases and what they deal with (validity, infringement), who are the litigants and where they are from? I keep hearing "German courts handle five million patent cases a year, all but one for English-speaking litigants" but no one ever seems to support that with any stats. Would be interested if you have some.

Also, sheer volume of patent cases is not necessarily a sign of an efficient, certain or robust system of protection and enforcement - in fact it usually is indicative of the opposite.

MaxDrei said...

Quite right anon. Loads of cases going to court reveals the German system to be crap, doesn't it just. What's really needed is a hugely expensive system, to encourage people to settle rather than litigate. Much better than the patents courts as a first resort, a branch of social services, ADR with added injunctive relief, a "Let's ask Uncle Judge for a written opinion and then see if we can settle" type system.

Have you any idea how civil law mainland Europe does civil litigation? Much like Japan and China, actually. Where then do you think European and Asian litigants feel more at home, when litigating their patent disputes, Germany or London? The Germany lobby has got the central divn siting issue buttoned up years ago, I suspect.

The stats are there(of course) but not to my hand and sorry, on Saturday evening I can't be bothered to root them out for you. But thanks anyway for playing this thread.

Anonymous said...

Max, thank you for clarifying that the basis for your comment "anywhere but London" is because European continental citizens are xenophobic. The "takes one to know one" argument falls down with simple logic. If I say that someone who calls another human being "A ****** ****** ****** from ****** ******* *******" is a racist, sexist etc, then that does not make me one of those people.

I can just imagine the court cases now: "The jury find you to be a murderer, a racist and a war criminal. But, as it takes one to know one, I hereby sentence the jury to life in Max's prison".

You are absolutely correct that I did not know such cases in Germany dwarfed the "puny" number of cases in England, but when you have answered the comment of Anon at 5:25, we will all be fully versed on the statistics and can all discuss the reasons and why and decide whether they are beneficial or not. Maybe there are so many case because German companies are about as respectful of IP rights as the Chinese (based on your comment, the IP rights of the business of non-European English-speaking companies).

You also failed to notice that my reasons for putting the court somewhere other than Germany where neither xenophobic nor based on the desire to have it in London.

I am well aware, however, that Munich-based patent firms have a large proportion of patent work from English-speaking nations, possibly due to location next door to the EPO, possibly due to lower costs, possibly due to superior attorneys.

Looks like your method of sharing differs than ours. We have "one for you, one for me, one for you, etc". Whereas, you seem to go for "one for me, one for me, as I've got some already I am clearly the best person to have them, so another one for me". Quaint.

Edinburgh or London with the risk of the UK leaving the EU? Well, look carefully and I was discussing all the options. Another option is Germany leaving the Euro and the EU and letting the rest of Europe get on with doing things on an equal footing, so in that scenario, we can have the EPO in London too. All possibilities based on non-blinkered thinking.

Finally, if there is so much litigation in English, especially in Germany, then why is everyone so against using English as the sole language of European patents???

Anonymous said...

And:

"Mr Delors, who was head of the EC from 1985 to 1995 and played a key role in bringing the single currency to Europe, said that the lack of central powers to control economic policies had led to some members falling deeply into debt.

And the 86-year-old added that the current crisis had not been caused by a single currency, but by 'a fault in execution' by those who were in charge of the launch - suggesting they had paid scant attention to weaknesses in member states' economies.

However Mr Delors suggested that 'a combination of the stubbornness of the Germanic idea of monetary control, and the absence of a clear vision from all the other countries' had been a contributory factor.

And he also said that Britain 'had a point' when it objected to adopting the Euro on the grounds that a single currency would not work without a single central bank and a state."

Says a lot about the way things are when Mr Delors says Britain got it right. Just put the court in London. The Olympic committee made the right decision, now it's time for the EU to finally make one.

Anonymous said...

Oh, I so wish that people who stray from the matter and into the evaluation of personal background, biases, hidden agendas, etc. would do so NONYMOUSly. It would serve two purposes: in many cases it makes you think twice before publishing, and if you are named, you may be taken to court in England for defamation.

I have a file folder reserved for things I wrote to get them off my chest but did not send. It helps my phrasing acid verbiage, but it remains confined.

Kind regards,


George Brock-Nannestad

P.S. The reason that the Japanese litigate much as the Germans is that the first law reform (in the 19th century) was based on the German Bürgerliches Gesetzbuch.

Anonymous said...

For this non-European reader of the blog, all he can do is wonder how Europeans can find the energy to focus on this issue while the fate of the Euro seems to be in the balance.

Anonymous said...

Anon at 7:28 could easily shorten the comment to:

"For this non-European reader of the blog, all he can do is wonder."

Anonymous said...

Germany is a good place to sue for infringement of an invalid patent.

Germany is the largest market in Europe and the largest high-tech manufacturer so you would expect more cases because of this, not necessarily because of the system.

Suing for patent infringement in Germany is not a great idea if your market is in France.

Suing for patent infringment in Germany is, I believe, not possible if you only have a French patent. Correct me if this has now changed.

Obtaining a quick decision in your favour in one country can be helpful for settling in others, but why settle when you can spend your life in court?

The choice of country of litigation for important inventions having a major economic impact is unlikely to be made based on the cost of tea and sandwiches in the court.

Anonymous said...

"Europe should be about elevating every country to the best level, not about remaining at or even sinking
to the lowest common denominator."

For "best", read "Germany".
For "lowest" read "UK"

http://www.iam-magazine.com/issues/Article.ashx?g=7e20eb5e-dff4-4654-8494-fc364d7a52ce


The German system presumes patents are valid and enforceable without question because of the strictness of examination. The EPO is good, but not to the extent that today you should deny a challenge of invalidity as a defence and only grant a stay if clearly novelty-destroying art is presented.

There has to be a fair balance between the patentee and third parties.

MaxDrei said...

Not in my name. I'm always turned off by Anonymous writers who write about "our" position. Worse are those who contrast our collective position with "yours". What exactly is the group for whom Anon 6.31pm thinks he speaks, and how does he know that MaxDrei is not actually "one of us"?

The Kat has lots of readers outside the UK, some influential. Does he suppose his rant is actually helping the UK bid to succeed? Why doesn't he offer something helpful, such as the point that litigating bad CII patents under the German twin track system is like having an excited bull in a china shop, doing considerable harm that would not happen with the English patent litigation system that looks at validity before it enjoins.

Ron said...

@IPKat:

I think this preparatory document in preparation of the Competitiveness Council may be of interest to you…

Anonymous said...

Lord forgive them for we know not who they are.

Let's not have any discussions unless everyone gives their full name and address and completes a register of members' interests? Interesting blog this would be and the UN can stop worrying about events in Syria which are based on anonymous reports and interviewees.

As there are no personal attacks from Anon above, the accusation is also unfounded. Try reading the posts of Max to identify such comments:

"With xenophobia, as with most other things, "It takes one to know one"."

The tone of the response at 5:43 to Anon 5:25 (yes different anons can cause confusion) is simply antagonistic.

I do not personally accuse my/our continental friends of xenophobia, that is simply the conclusion based on Max's comment ("Anywhere but Germany or England" mood.) and failure to provide a different reason to that proferred. I would have said the reason for the "not in London" view is purely due to self-interest, a human and national trait.

"Your" at 6:31 refers to Max. "Ours" merely refers to people who believe in a fair process for sharing. I'm guessing I am not alone in that particular aspect.

Who I am is irrelevant. And before a smart comment is made of that, the name and position of any overly smart responder is also irrelevant. If someone is speaking as a person involved in the discussions or claiming to have insider-information, then their identity may be important.

International decisions may be affected by comments made in this blog? The Kat (aka Jeremy) will be impressed. I provided a good reason above for a non-DE court:

"Germany is a good place to sue for infringement of an invalid patent."

If Max is one if us, whoever we are, I shall assume we are referring to the pro-London lobby (though I am slightly more anti-Munich than I am pro-London) then explanations as to why he believes there is anti-UK (or anti-DE) sentiment would be helpful.

Anonymous said...

I (anon at 6:31) shall add that the proferring of xenophobia as reasoning for "not in the UK" views is based on comments such as those from the French President "You come from an island, so maybe you don’t understand the subtleties of European construction." There have been many similar comments from our (UK) European (continental) friends (nations we are not currently at war with) recently.

Anonymous said...

The comment at 12:27 should ideally be read in the context of a previous submission that has not been posted.

Anonymous said...

Here are some stats re patent cases per year

Cases: 85 (UK), 700 (DE), 300 (FR)

Source: http://www.ecap-project.org/archive/fileadmin/ecapII/pdf/en/activities/national/thailand/20050719_20/holzer_patent_litigation_europe1.pdf

(page 26 of said document)

MaxDrei said...

OK readers, here's another reason for urging England as the venue.

We see above that you need an early authoritative reasoned decision, to settle the dispute in all of EPC-land. To forum shopping then; where can you get such a thing?

In England? Yes certainly. How often does the loser at the Patents High Court appeal the decision? There is seldom any point cos there's nothing to appeal. So, done and dusted, inside 15 months, or 12 or even less.

Contrast that with opposition at the EPO. In that forum, who doesn't appeal. Everybody does, of course, because the OD Decision is of such poor "quality". Join the queue and wait some years.

Or contrast it with patent litigation in the German courts. You finish up at the Supreme Court in Karlsruhe, typically 8 years or more after you started, waiting in trepidation for the finality delivered by the unworldly opinion of a court-appointed "expert". I think the current waiting list in Karlsruhe is one of about 5 years. What sort of a system is that then? Is that what Europe's members want, EU-wide.

Anonymous said...

There is an opportunity to create a system that is beneficial to society, that eliminates unnecessary and unwelcome delays (welcome for the patentee) and keeps costs down as much as possible. I would rather some agreement on the procedures and the court structures had been made and incorporated into any draft. These are the issues under discussion and so are probably more relevant than the majority of 'boiler plate' patent rule in the drafts.

What about Paris, one of the most accessible locations for Europeans?

MaxDrei said...

.....or how about leaving things as they are, with users able to choose between GB, NL and DE, and let competition between those three venues do the rest. It has already made London cheaper and quicker, while presenting its Decisions in a much more internationally accessible form. Meanwhile, in Germany, just look at the turmoil, as they seriously (and with increasing effectiveness)address the by now well-worn criticisms which I adumbrate above, so as to hang on to the business in the face of serious competition from GB and NL. Europe, these are serious practical benefits of venue competition. When your well-meaning but clueless politicians deprive the industry-leading, job-creating users of them, they do so at your peril.

MaxDrei said...

Somebody above offered the thought that Germany is a good venue in which to assert an invalid patent. Well, England is not.

But if your patent is one that can see off attacks on its validity, England is your venue, for there you can get, in English, and very swiftly, a ringing enough endorsement of the power and legitimacy of the patent to satisfy any court elsewhere in Europe.

Remember the DSS vs ECB case? Every Euro note an infringement, until the London High Court wrote the road map that wiped out the patent, all over Europe. Question: no Euro notes in UK. So, why did the ECB sue in London?

So, in the mix of jurisdictions on offer in Europe today, there's something to suit all classes of patent owner. Good so.

Anonymous said...

When I said Germany was a good place to sue for infringement of an invalid patent, it wasn't an endorsement of the German system.

Anonymous said...

Experience suggests that the decision will be based on politics rather than logic.

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