The IPKat recently reported that many readers had written to ask whether there existed a transcript of the powerful speech delivered by Lord Justice Jacob at the European Commission's public meeting last week on the preliminary report of the Inquiry into the Pharma Sector (see IPKat post here). The Kat has already provided a link to the live performance, but the Good Lord himself has furnished us with the full text -- which you can read here. Many thanks, Sir Robin, and keep up the good work!Pied Piper of Hamelin here
That Pied Piper speech -- full text now available
Reviewed by Jeremy
on
Thursday, December 04, 2008
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Reviewed by Jeremy
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Thursday, December 04, 2008
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Trenchant stuff from Robin Jacob. Bravo and three cheers for him. I should have liked him to have pointed out that there is currently a five year gap between first instance and appeal, on patent validity in Germany, which does not bode well for a twin track (separate infringement and validity) German-style system of patent litigation at multi-national, multi-lingual, multi-judge, pan-European level. I would have wished for even more emphasis on his experience as a lead litigator (alternating appearances in court pleading for the patent owner with appearances on behalf of the accused infringer) and, in that context, it is regrettable that his biographical notes at the foot of page 1 reveal him to have been a judge since 1993 and a barrister "from 1997".
ReplyDeleteExtremely good stuff, even if we are used to such devastating logic from LJ Jacob. And I notice with approval that he has also raised a critical eyebrow at the dubious "1,300 EU-wide patents" passage in the Commission's preliminary report. I also wonder where that came from, although, having some knowledge of how lobbying works in Brussels, I have a queasy feeling about it.
ReplyDeleteShame that the lobbying is overwhelmingly done by people (with an axe to grind) who are NOT those who are dispassionate, at the heart of the matter, and know the facts.
ReplyDeleteWhat MaxDrei fails to mention are the plans to make the German system more streamlined with the appeal to the BGH being only on a matter of a question of law, so no more court appointed experts and much quicker case turn around. The disadvantage, of course, is that parties will essentially be stuck with the decisions issued by fossilized patent examiners.
ReplyDeleteOn the whole a good piece from Jacob LJ, though I can't imagine it contains many surprises for most IP practitioners.
ReplyDeleteLike the 2nd poster, I am glad that Jacob doubted the 1300 EU wide patents statistic.
Then again, one should bear in mind that even those who should know better sometimes quote statistics which appear dubious.
For example, Jacob himself in his Burrell lecture said that the USPTO costs 2 billion dollars of taxpayer money a year, saying (see the transcript in the CIPA journal from earlier this year):
'There ís now amongst many a major concern that IP rights have gone too far and ought to be kept in proper check. There is concern also that the patent offices of the world simply cannot cope with the rising tide of patent applications - examiners give in to applicants too easily for their jobs would not be possible otherwise. And that is so even though the USPTO costs $2bn on top of the fees it takes in.'
This statement would seem completely wrong, as can readily be seen from a cursory view of the USPTO's annual reports, budgets and plans, findable within about 30 seconds on their homepage. See, e.g.
http://www.uspto.gov/web/offices/com/annual/2007/30705_stmntnetcost.html
Their annual reports have been further commented on elsewhere, e.g.
http://www.inta.org/index.php?option=com_content&task=view&id=618&Itemid=152&getcontent=3
Thus, even the most 'illustrious' can fall prey to repeating statistics of a clearly dubious nature.
Indeed, the thought that the USPTO could cost so much taxpayer money appears at first sight incredulous, which makes me wonder why it ever got as far as being repeated at such a lecture by such a person. Surely such an incredulous claim should have been cross checked first, as failing the 'is this really plausible' test? (surely a test which a judge ought to be able to apply)
Sir Jacob gives this telling example:
ReplyDelete"Moreover I am wholly unconvinced that even giving more time for an examiner to consider an application would make much a difference in the pharma field. Let me explain why by reference to a recent case in our courts. Simplifying a little, a pharma company had a patent taken out in 1980 over a basic valuable new compound. It got the product onto the market very quickly – in 1987. In 2000 it took out a new patent covering what it said was a new crystalline form said to be particularly useful for formulation. You could not tell from reading the old patent anything about the crystalline form. So you could not tell that the later patent was in fact for the old product. It is not surprising the patent was granted. The Office had no choice. In England the patent was knocked out by the High Court in fairly short order and my court, the Court of appeal, upheld the result soon after."
The interesting part here is "You could not tell from reading the old patent anything about the crystalline form. So you could not tell that the later patent was in fact for the old product. It is not surprising the patent was granted. The Office had no choice."
If the old patent is silent about the form of the old product (if not crystalline, then what?), then the examiner should obviously have asked the patentee for relevant evidence, to be put on public record, about the old product. That would not have taken the Office that much time. Now the case had to go through two Courts, probably at quite some expense to the taxpayer, to be eradicated again.
Sir Jacob is protecting the Office. That is very kind of him, but is it justified?
Very good speech, but the devil lies in some of its premices. There are good reasons to suspect Big Pharma does not in fact invest most of the economic rent produced by its legal monopoly in R&D - hence the sector's famous "pipeline" problem, well known to investors. From a more economical point of view, one of the problems with evergreening is that it consumes resources that would otherwise be at least partly devoted to R&D on products that are more innovative. Moreover, generic competition is indispensable to the patent system, since the incentive it produces for the patent holder to start developing new products is at least as big as the one provided by the ecomic rent that monopoly holders can expect if they develop a patented invention.
ReplyDeleteThe patent system (and copyright...) are not a fact of nature or even a matter of justice. In free market economies, monopolies are the exception, so there can be no justifiable "right" to a monopoly which is not based on sound public policy reasons, as opposed to "I worked hence I deserve a monopoly". The patent system is a public policy instrument that aims to maximise technical progress. If it can be proven to fail in this respect, it has lost its raison d'être. Consequently, the most dangerous ennemies of the patent system are those who want to absolutise it, including Big Pharma.
Again he is psuhing for EPLA:
ReplyDeletehttp://www.digitalmajority.org/forum/t-111056/ipkat:patents-and-pharmaceuticals-a-paper-given-on-29th-november
Can the German anonymous explain to MaxDrei why adoption of a plan to limit appeals to the German Supreme Court to points of law will have the consequence of leaving parties stuck with the decisions of fossilised PTO Examiners. "Fossilized" means "promoted to Technical Judge in the Federal Patents Court" is that it? These would be the same fossilized Examiners that the Duesseldorf infringement judge criticised, is it? The ones who revoked the patent that Duesseldorf then went on and enforced by injunction? Maybe this is why Germany is sceptical of a system in which barristers go on to become judges in the English Federal Patents Court. Better the German system of doing judging at university and graduating straight into a judgeship?
ReplyDelete