QM-Fordham-Singapore Dialogue; a Reprise on the EPLA

Yesterday, Queen Mary hosted the latest Queen Mary-Fordham-Singapore Dialogue in Charterhouse Square. This excellent event included experts from UK's intellectual property elite, including members of its judiciary - Lord Hoffmann, Lord Justice Jacobs, and Mr Justice Pumfrey - and representatives from the European Commission and UK Patent Office.

Chatham House rules prevail, but one thing that struck this particular moggy (especially in the light of recent debate on this site) was the discussion of patent law and the "patent system." In particular, participants considered the importance of examining the dynamics of patent law beyond the "front end" (grant) and "back end" (litigation) towards an understanding of the economic impact of patents (the "in-between" as it were). Indeed, this is the significant process in which policy-makers must engage.

This returns attention back to recent discussions of the IPKat concerning the European Patent Litigation Agreement (EPLA). No matter what one's position on the so-called "conspiracy theories," it is absolutely critical to the discussion of patent law and its application in the "patent system" that civil society and consumers continue to be motivated to engage with the debate. Arguably, what is necessary is that this debate mobilises beyond an adversarial attack, and that the various stakeholders focus on the process, which is of interest to us all - namely the socio-economic "middle." And this stray IPKat welcomes the debate.

The recent interim legal opinion on the possible conclusion of the EPLA (blogged on IPKat Thursday) makes it clear why this is an interest for the Community and the European Parliament. Jurisdictional matters are subject to the co-decision procedure, which means they require the consent of both European Parliament and the Council. The 1971 ERTA decision made it clear that member states can no longer enter into international agreements which fall within Community competence.

As for the EPLA, although patents are harmonised only to a limited degree (Biotech Directive and Enforcement Directive), jurisdictional issues are almost entirely harmonised. This is particularly following the views of the court in relation to the new Lugano Convention given in their opinion of last year. Community competence applies to jurisdictional aspects of all civil and commercial disputes, whether they're about patents or car accidents. The EPLA relates to the jurisdiction of the courts as between disputes involving nationals from different member states and so appears to fall squarely within Community competence.

Therefore, as far as Community law is concerned, it does not matter that patent law itself, like negligence, is not harmonised, because the jurisdiction of the courts to hear those cases is. This situation is only strengthened by the fact that the Enforcement Directive harmonises many aspects of procedure and remedies at a European level (something the EPLA also deals with). Once more, this means that the EPLA is likely to fall (at least to some extent) outwith member state competence.

The EPLA is, therefore, not contrary to EC law; rather, arguably it falls within Community competence and therefore requires endorsement by the European Council and Parliament. Perhaps a more appropriate question to ask is whether it falls entirely within Community competence or falls partially within both Community competence and the competence of Member States. In particular, Article 22(4) of the Brussels Regulation determines the court's jurisdiction for patents (including European patents), and this would need to be amended significantly if the EPLA were to be agreed. This is something that would need to be done by the Community not by Member States, and those supporting the EPLA are aware of this.

There is a wealth of debate on the merits or otherwise of the EPLA (for instance, some of industry may favour choice of forum; others argue that the conclusion of the EPLA is necessary for the improved efficiency and rationalism of the EPC system; while still others argue that the EPLA is tantamount to a creeping universality in patents and a move away from democratic and national sovereignty in patent law, said to be important in maintaining the patent as a national socio-political document). No matter what one's position within this huge diversity in the debate, the IPKat (and particularly Merpel) always loves a good fisticuff. But more importantly, in this period of debate on patent law, arguably it's not as simple as "them" and "us." And it would certainly be a more fruitful discussion without this.

(at right: Merpel takes on the IPKat over the EPLA)
QM-Fordham-Singapore Dialogue; a Reprise on the EPLA QM-Fordham-Singapore Dialogue; a Reprise on the EPLA Reviewed by Johanna Gibson on Saturday, February 17, 2007 Rating: 5


  1. Before reading this last post by Johanna I was starting to fear that the IPKat was starting to lose some of its objectivity when it comes to the issue of the rights and wrongs of the patent system.

    Whatever Merpel may think of the FFII, the FFII and organisations such as the Electronic Frontier Foundation (www.eff.org) have in the last few years been trying to inform the public and industry by allowing them to at least consider a view point other than that put forward by patent professionals. The FFII, unlike patent professionals, has its roots firmly in a movement driven by members of the public, who rightly in a democratic society, are trying to preserve a modicum of law making in the public interest rather than in the interest of minority interest groups (quite hard these days in the lobbying infested corridors of power). At EUPACO I was, or at least attempting to (feeling worse for wear), highlight that we cannot forget the 'in-between bit' in the patent debate. However, this bit is not just an analysis of economics but also of ethics and the morality of the patent system. It might make good economic sense to legalise prostitution and tax the profits of the same, but that would not make it necessarily morally acceptable. An open debate on the patent system (for those willing to have one) must look at all these aspects, the front end, the bit in the middle and the back end, all within a framework of the public interest and not just economics and market theory. To this end, I think there is much to be said for the Adelphi Charter group's basic recommendation that IP policy in the 21st century must pass a 'public interest' test. This cannot be done, without my second key comment at EUPACO, the need to engage the public in the debate. Without organisations such as the FFII, there would be much less public engagement in these discussions.

    I am glad that some within the senior judiciary see the need to focus on the bit 'in the middle' and that a part of the cat supports such moves.

    The above views are my own, not those of the FFII or EFF.

    Cristian Miceli

  2. I was unaware that the IPKat needed to be in any way 'objective' about the rights and wrongs of the patent system. Perhaps you are simply glad that we don't all downright disagree with you.

    I will not attempt to counter your arguments here, as I have great difficulty in following them and much has been said elsewhere. However, one point does need to be made:

    The EPLA is not anything to do with the rights and wrongs of patents themselves. It is a sensible attempt to try to reduce the complexity and cost of enforcing patents in Europe. Bringing in other arguments such as yours (which you obfuscatingly state at great length) is at best confusing and at worst disingenuous.

    Who are all those (apparently soi-disant) "lawyers against software patents" anyway? Are any of them actually willing to stand up and be counted?

  3. "The EPLA is not anything to do with the rights and wrongs of patents themselves."

    I would say I do not agree. Specialized patent courts in the US has lowered the standards for enforcing patents and have broadened patentable subject matter since its creation.

  4. You may not agree, Zoobab, but you are making a misguided comparison. The US has never had exclusions relating to software, business methods etc. present in Europe. Courts cannot ignore the clear wording of the law.

  5. Zoobab, read Aerotel on what the European Patent Convention bars from patentability. Then grasp the US Supreme Court pronouncement that "Everything under the sun made by man" is eligible for patent protection. Then think again whether any comparison between EU and USA is useful. You think specialism does harm? Who do you want medical treatment from, when you get some dread disease - a non-specialist?

  6. Might I ask a question, by way of a semi-reply to Cristian's moral outcry: how come supporters and activists of the FFII, EFF et al never acknowledge the stratospheric debt of gratitute they owe to the hundreds...nay, thousands... nay, tens of thousands of 'ICT' hardware and software patents (since expired), on the basis of the underlying technology of which they now reap the rewards of open source development (commercially inexsitent but, no doubt, intensisenly satisfying at a personal level)?


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