Tea and Sympathy? Baroness Wilcox's appearance before the Scrutiny Committee on the unitary patent proposals (Part I)

At 4:20 PM when the Committee adjourned, this
is probably what the Houses of Parliament looked like...

Last Wednesday, a week after the first hearing of evidence by the House of Commons Scrutiny Committee given by the IP Bar Association, CIPA and EPLAW (see reports here and here and transcript here), the Minister in charge of the proposed unitary patent and unified patent court package – Baroness Wilcox – was again before the Scrutiny Committee.  The hearing, which was due to start at 2:30, started late at 3:14 PM due to a vote on the Welfare Reform Bill.  The witnesses this week were Baroness Wilcox (Minister of State, Depart of Business, Invocation and Skills), Nicolas Fernandes (Legal Adviser, Department for Business, Innovation and Skills), Neil Feinson (Director of International Policy, Intellectual Property Office) and Liz Coleman (Director, Intellectual Property and Innovation Directorate, Patent Office).  Chaired by William Cash MP, the Committee members sitting were Stephen Phillips MP (Conservative), Henry Smith MP (Conservative), Michael Connarty MP (Labour), Nia Griffth MP (Labour) and Kelvin Hopkins MP (Labour).

Mr. William Cash MP

The hour of questioning crescendoed into an uncomfortable arc when two MPs on the Committee, arguably justifiably frustrated with some of the responses they were receiving from the witnesses, demanded that the witnesses provide straightforward answers to their questions.  But before that climax, Chairman Cash MP opened the proceedings:

“Welcome Minister, we have just one or two thoughts I would like to convey to you just as we start.  It is this - there seems to be something of an assumption, and this comes from many quarters, that this is all a frightfully good idea.  But actually, I have to say to we took evidence the other day and that was not the view  that was expressed by the  expert witnesses who came in front of us , including one from Austria.  I would like to say the sort of statements I have received regarding your statement of 30 January – the statement is strong on hopes and weak on certainties, the danger of bifurcation is grossly underestimated, and what has arguably worked adequately in Germany  will not translate to Europe as a whole, that if the system proves not to work we have no redress, and however valuable the objective may be in principle to have a unitary patent there is too much wrong  with this proposal as it stands,  and then of course there are all the questions about the location of the court and impact on the UK and so on.  I just wanted to get that on the record as we start, because you will see how that sort of thing fits in with the questions."

Mr. Cash MP then turned to his first question to the Minister which was for her to explain how much consultation there had been with stakeholders on the agreement to set up the Unified Patent Court and how much had the stakeholders views been reflected in the current draft.  Baroness Wilcox stated that:

Baroness Wilcox

“As you know, our government is very keen that we should, wherever possible,  help British business to get their patents and their copyrights as fast, efficiently and inexpensive as possible and this looks to be a way.  They have been trying to get it right for 41 years or so.  If it is possible for us to do it we will do it, but we won’t do it without looking very carefully and listening very carefully to what the stakeholders say.  As the Committee knows, the Intellectual Property Office itself has a consultation group that meets regularly to discuss the patent and the negotiations, and when I go to Brussels or wherever it is, I have with me in my head ringing the things that the stakeholders are concerned about, that they are worried about and that they want us to fight for when we get there.  You will know that the people who have given you evidence the last time around, the lawyers etc, we have heard what they have said and in a lot of cases we are very sympathetic to what they have said and we have make those points when we get there.  That’s important for us to do. And as you will know the last time, on the 5^th when I was in Brussels, that was why we didn’t agree a deal on the Competitiveness Council on 5th of December because we felt there have not  been enough discussion and we did not have a stable enough text agreement long enough to assess it properly.  So, there is no question that we are just trying to charge ahead and get something – it is important that it works.  And just last, if I may say, we have been before this Committee twice before and we are aware of its concerns as well and therefore when we went forward keenly to get a single patent underway, we did have a caveat on the court on how it was to be put together and how it was to be progressed.  So, I think that shows evidence from us that we are being very carefully with this.”

William Cash MP’s tone in his response to this answer set the scene for the rest of the hearing - it was clear that the Committee was not going to let any answer pass without, dare she say it, scrutiny.  Mr. Cash MP replied: 

WILLIAM CASH MP:  It certainly shows evidence that you are aware of the fact that there is deep concern.  The question I would put to you is whether or not you have taken any notice at all of the evidence that has been received by us, for example last week, or indeed any evidence that you have really  been listening to what they’ve been  saying, although you have obviously  heard what they ‘ve said.  The question is still as far as I can judge from the evidence that we have received, that everybody we have interviewed so far – who represents very substantial opinion and very significant number of people of imminence in the field –that they are all against it despite what you have just told us.  How would you comment on that?  Is it not just the case of tea and sympathy? 

Tea is here, but where is the sympathy...

BARONESS WILCOX:  No.  As I have said we have been working very carefully with the stakeholders [with the IPO] to a large extent their evidence to the Committee has already informed our negotiating position, so we go with the negotiating position of having absorbed and taken on board  and taken forward what they are worried about.  We have pursuing the option of a specialist patent court outside  the ECJ structure precisely because this is what stakeholders told us this is what they preferred.  More recently we have seen small improvements to the text of the Agreement and discussions on the Rules of Procedure have started up again after they had stopped in 2009.  These improvements in particular concern the transitional provisions, the opportunity to start more cases in the Central Division rather than the Regional or Local Divisions.  You will know, of course, from having listened to their evidence, how complex this is – we are working with countries who have very different ways of progressing their courts and so therefore if we are to get this through, which we very much hope– the Government hopes that the unitary patent and Unified Patent Court - which is a priority in the Government’s growth agenda  - we very much hope it will go forward.  We certainly have not come to the situation with the people  who are giving evidence to you and ourselves whereby they’ve walked away saying we are doing absolutely nothing and it will absolutely not work. That is absolutely not the case."  

One of these inclines could be dubbed
a Polish incline - i.e. it is less inclined,
than the other....

Mr. Cash MP replied stating that there “are some indications that it is a government and EU stitch up” and it was against this backdrop that there was some remaining concerns.  He then asked the Minister to turn her attention to a line in a letter she wrote to the Committee in December in which she referred to the Polish Presidency as being “less inclined to take on board amendments of a technical nature" in the negotiations. Mr. Cash MP asked what the Minister meant by that statement.  She replied: 

“Throughout the negotiations the delegations and the chairs have been very focused on taking texts forward rather than renegotiating them.  In the last 6 months the draft agreement has been negotiated on an inter-governmental basis as there is no formal EU involvement and EU legislative procedures do not apply.  The basis for the draft agreement has been the text reached in 2009, before the ECJ  opinion, the main amendments taken on board were those we needed to ensure that the draft agreement was compatible with EU law in response to the ECJ Opinion. Only recently was there an opportunity to make some small improvements in response to the stakeholders’ concerns.”

Mr. Cash MP questioned how satisfactory such an approach was in light of the significant industry and patent profession concern.  Neil Feinson answered that it was important to view the negotiations in the context in which they were being negotiated.  He stated: 

Camping on consensus....

“The issue for the Polish Chairmanship vis-a-vis these talks  was very much around that they wanted for their own purposes – they wanted to drive this dossier very quickly to conclusion.  They thought they could camp on consensus that had been achieved earlier. We indeed, I remember discussing with this team, who were negotiating this quite hard "how do we get the Presidency to talk about the sort of issues we want to talk about and the sort of issues the stakeholders had been raising with us?"  One of the issues with these sorts of  negotiations is that you are sort of in the hands of the people who frame how the negotiations proceed.  Unfortunately, we were unsuccessful in persuading the  Poles to allow us to raise these issues early enough.  That is why when we got to the 5^th of December, we just said to them “Here are our the other points, we have been telling you what these points are, these are the points our stakeholders have been raising with us”, and this is one of the reasons the Minister would not agree on the 5^th of December."

Mr. Cash MP observed that there seemed to be a “driving force [that is] built in the dynamics of the European establishment" but that it was not shared by the practitioners.    

Continued in Part II