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Wednesday, 30 May 2012

Pagenberg: Unitary patent package tainted by lack of transparency

The AmeriKat tentatively testing
the quality of the sun this morning...
Good morning from the AmeriKat!  Today the Competitiveness Council meets to determine the fate of the unitary patent package (see previous posts here and here).  In the preceding days, Ministers from the Member States have been briefed by their government's staff, stakeholders and industry members and will no doubt be preparing for, as Baroness Wilcox characterized it during her evidence before the Scrutiny Committee, a session of "who can stay in the room the longest".  A press conference is scheduled later today after the Competitiveness Council's meeting (which the AmeriKat hopes to report on --  IT problems permitting).

Dr. Jochen Pagenberg
It is no overstatement that the profession and industry will nervously be watching events in Brussels today in the fear that the overzealous pursuit for a cheap, but costly, political victory will overrule the unified articulation by the patent community of their considered conclusion that the unitary patent package is inherently flawed.  The AmeriKat and IPKat have both reported and commented on the lack of transparency in the European legislative process.

The legislative process  by which we have reached the position in respect of the unitary patent is a prime example of this symptom of lawmaking.  This morning in advance of the meeting today, Dr Jochen Pagenberg (Bardehle Pagenberg) wrote to President Van Rompuy on the EU Patent Package.  Dr Pagenberg wrote in the following terms:
Dear President Van Rompuy,
I am writing to you in the above matter because of great concerns of part of industry and practitioners as to the present status of the patent package, the lack of information and cooperation from the instances in Brussels and how this matter has been and is being handled in the Council, the Parliament and the Commission. Representatives of German industry had therefore asked me to provide a summary of the present situation, and in the course of my research I detected a number of unusual incidents which happened during the legislative process in Brussels. You will find attached an article in its English version which had already been distributed in German four weeks ago and will be published in German in the journal GRUR in a few days.
I was a member of the Expert Committee of judges and attorneys of Dr Fröhlinger and have devoted more than 50% of my time in the last three years to this project, during two years as a president of the European Patent Lawyers Association. I thought that this was justified, since I had always hoped that five of the best patent judges in Europe and five of the most experienced litigators had been chosen by the Commission with the goal to reach the optimal result for a patent litigation system which would work in practice and thus become attractive for the users after its entry into force. It was the general hope of the future users that it would be affordable not only for big industry but also for SMEs as it had been promised over all those years in every document of the Commission and the Council.
In November of last year I became convinced that these goals had gradually – and secretly - been abandoned and that the Commission and the Council were no longer interested in the recommendations of its own experts. One member of the Judicial Committee of the EP Parliament even called the experts “lobbyists” during the debate on the Patent Regulation and voted with the majority of his colleagues against one of the basic recommendations of the experts, namely not to expand the jurisdiction of the European Court of Justice in the area of patent law by including substantive provisions on patent infringement into the draft Regulation. I therefore decided at the beginning of 2012 to leave the Expert Committee.
This abandonment of the original goals in addition occurred behind closed doors in an unprecedented process of legislation which would nearly have led to signatures of the Council under papers of the “patent package” which had never seen the light of a public discussion. All this you can read in the attached article.
It appears that we are again in a similar situation as in December, since dates for deliberations in Parliament have been announced and the users fear a signing of a text of the draft Agreement which they have never seen or discussed. You may not be informed of the details of the patent packageand its legal and practical deficiencies, but the details of how this dossier has been handled by the instances in Brussels over the last six months show such an amount of undemocratic behavior that few people in Europe would have imagined. I attach the two latest documents which have been cited in my paper for easy reference. [here and here]
That it is the official belief of the members of the General Secretariat of the Council to hide legislative texts from public discussion because they fear that otherwise users and the members of national parliaments would learn about negative impacts of the project and therefore would oppose and refuse ratification, is more than surprising. The same can be said about the Council as a whole which confirmed in its session of March 8 by a large majority that the respective unpublished papers should remain secret. But there are more incidents which also concern the Parliament and the Commission as you can see in my paper.
I think – and this belief is shared by everyone I have talked to during the last weeks – that it is your obligation to prevent that this important project will forever be tainted with these incidents during the legislative process and already for this reason will fail. There are in addition many flaws which have found their way into the texts as a result of political compromises which again have never been discussed with users. Compromises may be a necessity in politics sometimes, but not where the goal was to achieve the best of, or at least a better than, existing patent litigation systems. The multiplication of compromises has resulted in an unworkable solution which industry will no longer wish to use because of serious drafting errors of people who obviously have no practical experience in patent litigation and are not interested in any advice of those who have. 
The time until the end of the Danish presidency will be too short to devote enough time to this project. It is also too important for economic reasons, so that the Council should not treat it as an unwelcome side issue on the agenda besides the larger issue of the Euro crisis. Users have requested since more than half a year more time for being finally included in the deliberation process. There are a great number of points discussed in the report of the Scrutiny Committee of the UK. I have also made a few rather simple proposals in my paper which may serve as a starting point; but more detailed discussions will be needed.
As you may have learned first publications on the lack of transparency have become known in Germany already several weeks ago with articles in legal journals and commentaries in the daily press of which I attach one example. But a reaction from the Council has not become known so far. I will therefore send copies of this letter to the press and selected publications and I am looking forward to any comments you might have.
Please excuse the form of my letter, but time pressure did not leave any other possibility than sending this by email.
Very truly yours
Jochen Pagenberg    

The AmeriKat, IPKat and numerous practitioners support Dr Pagenberg's position and thank him for taking this step in writing to President Von Rompuy on these issues.  Readers of the IPKat will know that, since last autumn, the AmeriKat's frustration as to the lack of transparency in this process has escalated in recent months.  Calls for clear indications as to the procedure of the legislative process, the status of negotiations, disclosure of opinions and the very texts on which Member States are due to vote have all resulted in a deafening silence from Brussels.  The legislative process is meant to be open and transparent, so that those who will most be affected by laws are able to understand the scope and implications of a law by which they will soon be bound.  Merpel believes that refusing to open a dialogue with the public over its concerns regarding problems with the substantive provisions and lack of transparency smacks of arrogant politicians willing to sacrifice what is in the best interest of their electorate for a cheap political victory.

It may all be too late, however.  Indeed the AmeriKat understands that the location of the Central Division has already been secretly agreed a few days ago.  Of course that could just be a rumour, but will have to wait until this afternoon to find out.  In the meantime, the AmeriKat bids you a perhaps, apropos,  "au revoir ....".

23 comments:

Anonymous said...

So, in a nutshell -and provided I didn't got it wrong: all this long commentary mostly beacuse DE/GB colleagues are upset since it appears that the CD will be located in FR ?
Well, myself not being located in the DE/GB/FR triad, guess my professional life won't change much anyway. Any (perhaps more interesting) points to discuss ?

Anonymous said...

You did got it wrong. Try reading the letter and article first. It helps.

I'm a UK patent litigator and, if the package was right, wouldn't really care where the Central Division ended up.

Conversely, if the current proposals (so far as we've been told them) get forced through, having the Central Division in London would be of no consolation whatsoever.

Anonymous said...

Anonymous: You got it wrong - the location of the court is moot. The point of the post and commentary is to highlight that the lack of transparency has resulted in a proposed patent system that is worse than and detrimental to European business and innovation.

Despite what European legislators would have you believe - it is not all about the seat of the Central Division.

Anonymous said...

The disputes about the location of the Central Division have been unhelpful, and the blatant appeals to national interests have allowed the objections to be painted by the Commission as a 'petty squabble'.

In reality, if the EU Patents Court is established based on the current proposals, companies will choose to locate new factories outside of Europe where possible, so as to avoid inevitable unjust injunctions permitted by the EU-wide bifurcated system.

The EU will become a trolls' paradise, and electronics and telecoms companies will have to get used to paying a 'patent tax' in order to do business in the EU.

Best of luck!

Anonymous said...

And so they say those who created the monster... And now wish that Spain's case succeeds...

Anonymous said...

Let's just hope that Paris will get the Central Division.

Because that means that UK and Germany have more rights on providing the judges.

And because Paris is just a great city.

Anonymous said...

Just out: still no agreement on the seat of the Central Division...

Anonymous said...

Just heard that the Danish Presidency will struggle to get a deal "by the end of June" (have heard this before ...). No further details are given. The location of the Central Division seems to be the dealbreaker. To be frank, it's tiring ...

Annsley Merelle Ward said...

Anonymous at 5:46 PM: You and me both.....I have serious unitary patent fatigue.

Anonymous said...

Mr Pagenberg is a lobbyist, not an expert.

The Patent profession wants a patent on the patent court, they are getting there.

Anonymous said...

To say that Mr Pagenberg is not an expert is pretty disrespectful in my opinion. He's a very well known and well respected patent lawyer with many years' experience. Yes, his article does contain some advocacy in favour of a bifurcated system that I imagine most UK practitioners would not agree with, but on the whole his concerns about the form of the proposed package and the way it is being foist upon us are universally shared with every single patent lawyer and patent attorney I have spoken with.

Yes, the profession wants a unified patent court, just not one in the form currently being steamrollered. If "getting there" means getting to a system that is worse than the current one then it's not only pointless, it's perverse. When will the politicians learn that getting agreement is only a good thing if you agree on something worthwhile?

Anonymous said...

"To say that Mr Pagenberg is not an expert is pretty disrespectful in my opinion."

Sorry, but Mr Pagenberg has a business at stake with his firm "Bardehle Pagenberg".

So even if he has a lot of experience on those sujects, he is not neutral and will have a bias towards favouring patents, even if he is representing patentees or defendants.

Anonymous said...

"Steamrollered"? This is a pretty asthmatic steamroller, considering that it cannot climb over the speedbump of the seat of the Unified Court's Central Division...

Anonymous said...

To Anon @ 3:13pm - ""Steamrollered"? This is a pretty asthmatic steamroller, considering that it cannot climb over the speedbump of the seat of the Unified Court's Central Division..."

On the contrary - everything else, we are told, has already been agreed behind closed doors. Just because we haven't been run over on one issue doesn't mean that we haven't on all of the others.
----
Anon @ 4:19pm - So Pagenburg's views should be disregarded because he's a partner in a professional firm? The people working in the profession are precisely the people who who understand best the problems of the current system and the shortcomings of the proposed 'solution'. Would a retired judge and current academic like Sir Robin Jacob be neutral enough for you?

"I know of no one in favour of involvement of the CJEU in patent litigation. On the contrary all users, lawyers and judges are unanimously against it."

In any event, Pagenburg's criticisms of the secrecy of the EU process, for example, can hardly be dismissed on the basis of bias.

Anonymous said...

So even if he has a lot of experience on those sujects, he is not neutral and will have a bias towards favouring patents, even if he is representing patentees or defendants.

I really get tired of this argument: anybody who may have actual first-hand experience about the patent system is immediately dismissed as "biased" by people whose only knowledge of the same stems from outrageous headlines of the IT press, and from the echo chamber of the FOSS blogosphere (some of whose members certainly can be called lobbyists "as such").

Besides, what is the problem of "favouring patents" in this particular debate? Surely, the whole stated point of the unitary patent and the unified patent court is to favour (valid, properly granted) patents!

In any event, Pagenburg's [sic] criticisms of the secrecy of the EU process, for example, can hardly be dismissed on the basis of bias.

Except that, as he points out himself, he was closely involved in the EPLA talks which, apart from a legal dog's breakfast, weren't exactly a paradigm of democratic transparency, except perhaps to a few initiated like him. So it is a bit rich of him to accuse the EU Commission, Council and Parliament, who have debated this issue to exhaustion, publically as much as behind (badly) closed doors to "lack transparency".

I am sick of the blatant disingenuity shown by all sides: a pox on all of you! Maybe we Europeans really deserve to go down in flames.

Anonymous said...

@LastAnonymous

"I really get tired of this argument: anybody who may have actual first-hand experience about the patent system is immediately dismissed as "biased" by people whose only knowledge of the same stems from outrageous headlines of the IT press, and from the echo chamber of the FOSS blogosphere (some of whose members certainly can be called lobbyists "as such")."

You are right, kick the patent guys out:

http://www.stopsoftwarepatents.com/petition

"Get patent professionals out of policy making. Increase the influence exercised by economists on the governance of innovation policy. The quality of professional judges cannot be exchanged for 'technical judges' without legal training and eligibility to a judicial office or administrative 'case law'."

Anonymous said...

@LastAnonymous

"I really get tired of this argument: anybody who may have actual first-hand experience about the patent system is immediately dismissed as "biased" by people whose only knowledge of the same stems from outrageous headlines of the IT press, and from the echo chamber of the FOSS blogosphere (some of whose members certainly can be called lobbyists "as such")."

You are right, kick the patent guys out:

http://www.stopsoftwarepatents.com/petition

"Get patent professionals out of policy making. Increase the influence exercised by economists on the governance of innovation policy. The quality of professional judges cannot be exchanged for 'technical judges' without legal training and eligibility to a judicial office or administrative 'case law'."

Anonymous said...

Wrt Pagenberg, I also find it rather amusing that, as proof of the increasing disquiet in the German press concerning the alleged secrecy surrounding the unitary patent, he attaches an article which mainly cites one...Dr. Jochen Pagenberg. If he is acting as a lobbyist, he is not being a very good one: most people in Brussels are rather jaded and wise to such maneuvers.

Anonymous said...

You are right, kick the patent guys out

I hope the AmeriKat can lend me her Stress Reduction Kit. It's just this kind of idiocy from the FOSS echo chamber which makes me want to bang my head against the table.

Anonymous said...

"I hope the AmeriKat can lend me her Stress Reduction Kit. It's just this kind of idiocy from the FOSS echo chamber which makes me want to bang my head against the table."

It is like when a patent attorney tells you to read patents before writing code, you just take an axe and chop off his head. And after that, you have the impression to contribute to a better world.

Anonymous said...

Clearly Dr. Pagenberg would not like to see the draft legislation enter into force in its current form. We know that in the copyright sphere the issue of public accountability of the negotiations leading to the ACTA has resulted in the legislation being abandoned at Commission level following public outcry orchestrated by a minority.

Could it be that the issue of public accountability of the patent legislation is being raised in the hope of having a similar effect?

Anonymous said...

Having an interest doesn't mean you're not an expert. Non-experts also can be biassed - see examples above.

Anonymous said...

If you think badly of the proposed legislation (as many of us do) what is the objection to raising the issue of public accountability in order to defeat it? Or is the point that public accountability is so lacking generally in the EU system that it's hardly sporting to emphasise any particular instance?

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