Those European patent court proposals: the CIPA response

The IPKat received a press release earlier this week which he has only just got around to reading. It's from the Chartered Institute of Patent Attorneys (CIPA) and was issued in response to a newspaper report that EU industry ministers had agreed formally to ask the European Court of Justice for its opinion on a potential overhaul of patent litigation in Europe (on which see here). The press release goes as follows:

"According to Vicki Salmon, chairman of CIPA’s litigation committee, the ministers’ request highlights the efforts being made to set up cheaper, more streamlined procedures. “This proposal deserves support,” Vicki Salmon says, “but, as ever, there are some devils in the detail.” [The IPKat would like to see the detail, but it just doesn't seem to be available to peasants and pussycats]

According to CIPA, achieving the confidence of the business community, quickly and effectively, will be critical to the success of any European patent litigation court ['quickly' is an interesting concept. If the court came into being tomorrow, how many months/years would elapse before the first full trial would take place?]. Questions of language [if it isn't English?] and local interests [i.e. will patentees in some countries be happy to lose the advantage of litigating at home against a foreign invader?] will continue to be topics for debate, affecting such confidence.

In some countries there is a wealth of experience of patent litigation - not necessarily always leading to the same outcome in the courts as judges can disagree - while in others there is almost no experience - indeed in some, literally none. The current proposals are for a three-judge court, made up of two local judges and one from another jurisdiction. That third judge may well speak a different language and have a different legal background from the two local judges, which could lead to misunderstandings i.e. the third judge misunderstands that he is there for purely cosmetic or politically expedient purposes?]. Litigants may choose, for tactical reasons, to litigate in a state where there is little experience [Indeed. It's sometimes said that infringers sometimes choose to do the same ...]. This could seriously undermine confidence and consistency in a court in its infancy and, if not lead to a still birth, leave it significantly disabled [Another problem is over-confidence, rather than the lack of it]. “It is highly desirable that as diverse a selection of judges with real practical experience of patent litigation is used until consistency is clearly and demonstrably established,” says Vicki Salmon.

CIPA is arguing that, if a European patent court system is to be more cost-effective, then it is also important to consider who will be representing the parties. In the UK, qualified patent attorneys can bring cases in the Patents County Court, the High Court (Patents Court) and the Court of Appeal. Although the current proposals include rights for patent attorneys to represent their clients, there is considerable pressure from lawyers across Europe for the new court system to be closed to specialist IP attorneys, regardless of who can do the best job for the client [The Kat hopes that this issue is resolved in terms of reality rather than principle, since any proposed system is only as good as the people who work it. Patent attorneys have come a long way since they first obtained rights of audience in the UK and litigants should be entitled to instruct them if they so wish]".