|Margot Fröhlinger: |
the internal UPC optimist
Margot Fröhlinger, the Principal Director of Patent Law and Multilateral Affairs at the European Patent Office was the first presentation of the session speaking on the million dollar question "Will the Unitary Patent become a success? " a talk aiming to dispel the concerns of the Unitary Patent and UPC. The billing described the talk as emphasizing that "despite the current uncertainty about the level of renewal fees for the Unitary Patent (UP) and despite concerns about the future functioning of the Unified Patent Court (UPC) the UP is likely to become a success." The factors that were mentioned as making the system a success were the "thoroughness of the preparatory work" and "the quality of the future judges." As Fröhlinger would surely have described her, the AmeriKat has historically been pessimistic about the UPC so the disbelief on the AmeriKat's face was evident when she read these words on the conference programme. But with her usual focused flourish, Fröhlinger did not disappoint in delivery her brand of UPC optimism.
"An optimist may sell you that the UPC and the unitary patent will be the best of all possible worlds", began Fröhlinger, "the pessimist may fear that may be true." The current doubts and concerns relate to the level of renewal fees and the functioning of the UPC - the efficiency, quality and fairness of its judgments. Conferences, she noted, are often dominated by how to opt-out of the system, not how to use the system.
|What, oh what will the renewal fees be? Care to take a spin|
on the WHEEL....OF.....FORTUNE!?
The second concern related to the functioning and uncertainty of the UPC. Eventually, the exclusive jurisdiction of the UPC may become an incentive rather than a deterrent for choosing the UPC, explained Fröhlinger. During the transitional period of 7-14 years, an EP may become the subject of litigation in several jurisdictions. This can be avoided by choosing the unitary patent and UPC. Concerns about the quality and efficiency of the UPC and the uncertainty resulting from the unfamiliarity of the new system are likely to be dispelled soon after the system comes into operation. Fröhlinger considered that European IP practitioners have already experienced this with the creation of the EPO and OHIM.
|Will the UPC be a lottery of whether or not|
the judges hearing your case are experienced?
She concluded by stating that the concerns from patent holders on the possibility of central revocation was unfounded. "There is no need to be afraid of the UPC unless you have a bad patent", she declared. Concerns on bifurcation and the grant of injunctions will be reviewed by the Preparatory Committee but bifurcation is unlikely to be the Big Bad Wolf that everyone has feared. Indeed, she pointed to the mock trial at the last IP judges conference in Venice where all the judges decided not to bifurcate the proceedings. She also noted that there will not be automatic injunctions in Europe as all judges consider the factors. The AmeriKat is less convinced by that point as the difference between the exercise by the judges in granting a preliminary injunctions in the Member States can be quite different. Fröhlinger's final comment was that "the only place where 'success' comes before 'work', is in the dictionary". A pessimist would say that "failure" comes before both of those words, but after Fröhlinger's speech who would dare be pessimistic about the UPC?
|Judge Rosas emphasizing|
the importance of the now
infamous Opinion 1/09
In the past, Judge Rosas noted that that the CJEU has accepted that the EU can commit itself to internationally binding disputes such as the WTO. In Opinion 1/09 the Court held that the EU could not commit itself to the then draft Unified Patent Court Agreement which was in relation to a scheme which would have involved an international organization with participation of other EU Member States. Judge Rosas stated that this was of course very different from what one was used to in relation to trade marks and other examples in which you have a Union agency with a possibility of appeal to the Union courts in Luxembourg. Indeed, Rosas continued, that feature of the draft Agreement as it existed at the time was a problem. The problem specifically arose from the fact that according to the draft Agreement the national courts of the EU Member States would have been deprived (a word noted to have been abused in the Opinion) of their right to submit preliminary ruling requests to the CJEU in the fields where this international court system would have had exclusive jurisdiction.
|Sir Robin Jacob, unusually not reading a patent law book|
in the UCL library
Judge Rosas concluded
"One should not interpret [Opinion] 1/09 as some view or hostility of the court vis-a-vis a unitary patent. Many people of the court, including myself, felt rather bad that the Opinion led to a negative result. But sometimes as a judge you have to look at the constitutional and legal realities which lead to the conclusion that we came to. But now of course the situation looks a bit different."Sir Robin stated that IP lawyers' view of the CJEU is zero, citing the decision in Brustle as an example where the view of the Court is likely to be absolute zero. He therefore asked Judge Rosas whether the CJEU is fit for hearing IP cases. Judge Rosas said that he was in favor of a generalist approach:
"At the CJEU you hear all types of areas - transport, environment, immigration and criminal law. All of these fields have the same concerns. It is a classical debate in all Member States. I would personally think that it is even healthy that people who are not great technical experts hear the cases and provide an external judge's view. You cannot have a court system that consists solely on technical experts. Obviously, the consequences of this are harsh words."Wim van der Eijk, the Vice-President Directorate-General Appeal at the EPO responded to Sir Robin's question about the effect that central revocation in the UPC will have on EPO oppositions by stating that it could have an effect on the number of oppositions filed. He considered that central revocation actions in the UPC could be viewed as an alternative but if there is not much trust in the system you may not wish to only seek revocation of the patent in the UPC. His overall view was that he would not be surprised if the UPC lead to fewer opposition actions.
|Like Jimi Hendrix, Judge Grabinski|
wants to know from
the UPC candidates
"Are you experienced?"
would be the exception, not the rule. This would also be the case for the local divisions in Germany. Judge Grabinski viewed the current system as actually "not too bad" in that decisions are handed down in number of jurisdictions to first instance within a year. Some courts are a bit more expensive, but they are not too expensive. Europe also has a loser pays costs regime which is one reason why unlike in the US the troll problem is not too bad. Judge Grabinski observed that when a new system starts there is always a lot of uncertainty as users do not know how the courts will interpret provisions in an agreement. Echoing Margot's comments, this uncertainty is comparable to the situation with the EPO - no one really knew how it was going to work. There is a chance that the new system will be a success but like his comments at AIPPI in Helsinki last year, the selection of judges will be a very important issue. Referencing the Statute in the Unified Patent Court Agreement, he pointed to the provision on the appointment of judges who are appointed by the Administrative Committee. When appointing judges they will ensure the best legal and technically experienced judges are appointed, as well as ensuring that the judges are selected from a broad geographical spectrum. Judge Grabinski agreed with both of these factors in the selection of judges but the latter criteria could be misused. His formulae for users getting comfortable enough to rely on the system would be that on a panel of three legally qualified judges, at least two should be experienced. This would leave the lesser experienced judge to learn on the job. If the panel is the other way around - one experienced judge and not two - then the system will be a "a mess". Judge Grabinksi advised that users should check who is appointed as a judge to decide whether the system can be reliable.
Sir Robin, who is the chairman of the Advisory Committee looking at the selection of the judges noted that amongst the 1,300 applications for the UPC judges there were really good candidates - more than enough "good people to staff the court in order to be one of the most respected courts anywhere in the world". A big claim, from a big IP legend and a once highly vocal critic of the UPC.
|Dr Janssen - getting ready for some|
shopping in the UPC
David Laliberté, the Director of IP Policy at Microsoft also thought that the system has the potential to be better, but it also has the potential to be worse. A lot of what happens in the coming months will help answer that question, David noted. He said that Microsoft tends to be optimistic that the solutions will be forthcoming. To support this view, he noted that the 16th draft of the Rules of Procedure addressed some of their concerns, namely with provisional injunctions the rules on which now provide for a balancing of interests exercise. There are, however, other areas that need to be addressed and he looks forward to the public hearing to address these issues - for example on bifurcation where they would like to see some more restrictions on the judge's wide discretion as to when bifurcation can occur. Although David noted that Judge Grabinski considered that bifurcation may not happen save for exceptional cases, David would have preferred a system where there was more predictability on that issue than the wide discretion that is afforded to judges currently. David concluded by stating that the success of the system and the participation of users depends on the question of fees and costs. That is currently a huge unknown.
|John Temple Lang doubting|
the number of experienced
patent judges in Europe
|All signs point to appeals in the UPC - but which court gets to decide?|
Judge Grabinski did not agree with this, although he admitted he did not know about the story on the linguistic point. He said that we have to interpret what is in the Agreement. He feared that there could be an onslaught of appeals on each and every decision of the court. Sir Robin disagreed. He did not think that every case will have an appeal. He considered that the sensible Court of Appeal which needs to be robust and commanding, would control the number of appeals it hears choosing only to hear those issues of procedural importance to the efficient functioning of the UPC.