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)