Those pesky patent proposals: now it's CIPA's turn

The Chartered Institute of Patent Attorneys (CIPA) has just issued a press release concerning the thumbs-down which the Advocate Generals of the Court of Justice have given to the (questionable) legality of the proposed European patent and patent courts. Says the press release:
"‘The European Court of Justice will have to take a pragmatic interpretation of the Advocate General’s Opinion if we are to see any possibility of a single European patent and a common European patents court system emerging from this process”, says Vicki Salmon, speaking for ... CIPA. The Opinion’s headline finding appears to come down against the legality of the proposed arrangement for a single European patent and new European Patent Courts, concluding that: “As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties”. However, CIPA believes that the European Court of Justice (ECJ) can - and should – put the undoubted benefits of the proposals ahead of issues of legal policy, if long-awaited changes to the patent system in Europe are to have any chance of being realised [Assessing the benefits of proposals is not exactly what the Court's judges are paid -- or indeed trained -- to do, and since they're even less answerable to the EU electorate than its elected representatives and appointed office holders, that's probably just as well].

“The Advocate General’s Opinion does allow that there is nothing in the European Union Treaties that should specifically prevent a single European patent or a common European Patents Court system from being set up,” says Vicki Salmon. “We welcome this [This is small comfort: the reason why there's nothing in the Treaties to prohibit it is probably because the subject never occurred to those who negotiated and signed them]. There are enormous commercial benefits to be gained – in the UK and across Europe – for companies who would have only a single European patent and a common patents court system to deal with. This has been the vision since the European Patent Office was set up in the early 1970s by a group of nations who were determined to make it happen. The EPO has remained separate to the EU justice system and, for all its faults, is widely considered to have been a great success [Much of the EPO's work has indeed been acclaimed, though not everyone is enamoured of its dispute resolution mechanism in opposition proceedings -- and it's dispute resolution that we're worried about here]. If governments and businesses across Europe want it – and most of them do seem to - there is no fundamental reason why the countries involved should not now take the next big step and put in place a single European Patent and common patents court system [though the next big step may be a rewriting of the EU's fundamental laws before the smaller step of emplacing patent courts can be taken].
“The proposed treaty needs proper discussion and debate and the views of users – those companies, groups and individuals who have the most to gain from the proposed new system – need to be taken into account.” [Agreed -- and this discussion has been woefully deficient. One suspects that some good folk in high places have been impressed by ACTA-style secrecy -- which the European Parliament itself decries -- and thought it might come in handy here]

Industry and the legal profession are surprised at the unusual way Advocate General Juliane Kokott's Opinion [the Opinion is said to be that of all the AGs, not just Juliane's] has been allowed to seep into the public domain, rather than being formerly announced. “Patent attorneys are not the only group to be taken aback at the way this long-awaited legal opinion mysteriously appeared last week on a patent lawyer’s blog [naughty!] – and only in French [even naughtier, especially during a month in which les Français are traditionally on les vacances] - over six weeks after the date of 2 July given on the document. There still appears to be no sign of it in any of the places where you would normally expect something of this importance to published, such as the websites of the European Court of Justice, the European Patent Office or the European Commission [well, some people actually expect it to be seen by readers of this weblog.  This item, posted on 23 August, reached over 9,000 readers in 24 hours; another 1,050 readers received or accessed this item during the same period]”.
The IPKat thinks CIPA is expecting too much from the Court of Justice, but strongly agrees with the Institute's call for a fuller debate.  He still thinks that we've heard a lot from those with official institutional briefs and idealists, but rather too little from patent litigators and from small and medium-sized businesses -- both as potential plaintiffs and as likely defendants.  Also, in his view, there's no point in setting arbitrary deadlines and rushing it: it's better to take a few years longer if need be, attending to the detail as well as the principle and making sure that everyone knows what the new system is and how it will work before activating it.  The patent system is a vastly complex, highly subtle and tremendously flexible institution which has evolved over many centuries: this evolution has been mainly in response to users' needs.  It is now less clear than it ever has been as to what users' needs are, since we are well past the days when one-product-one-patent was the norm.  And if constitutional or other reform is required before the desired steps can be taken, so be it.

Merpel says most Kats only have nine lives.  My colleague is obviously expecting rather more, if he expects to be around when the results of his preferred approach might be expected to come to fruition.
Those pesky patent proposals: now it's CIPA's turn Those pesky patent proposals: now it's CIPA's turn Reviewed by Jeremy on Thursday, September 02, 2010 Rating: 5


  1. We've also heard very little from the humble citizens of Europe. Whether or not they understand what a patent is, many good burghers do have strong views on European integrationist ideals and the concomitant eroding of national sovereignty. Just wait until the Daily Mail picks up the story!

  2. The AG noted four objections on the draft agreement as it now stands.

    Firstly, the lack of effective judicial control on the grant procedure by the EPO by an independent court required to observe Union law and which is authorized to refer preliminary questions to the ECJ (point 72). A solution was either to extend the competence of the PC on administrative proceedings or to create an administrative patent court (in this context it referred to the autonomy project of the boards of appeal which has to be amended to comply with Union law and to allow the boards to refer questions to the ECJ (what according to G2/02 is impossible now)).

    Secondly, the guarantees that the PC fully observes Union law were insufficient. This can easily be corrected by addressing this issue in the agreement.

    Thirdly, that insufficient remedies were provided when the PC infringed Union law or did not observe the effect of a preliminary reference. This can also easily be corrected by providing a mechanism for complaint before the ECJ (point 114).

    Fourth, the language regime before the central division was insufficient, since a defender may have to defend his case in a foreign language. The solution was to provide translation of procedural documents to the defendant. This should be possible, since it has only a limited impact (translation only into the defendant's language and only for the proceedings before the central division).

    In my view all these issues can be solved if the political will to do so exists.

  3. Sigh. Remember how the European patent validity regime got started? Real experts set it up. But think of the way "Europe" handles issues of patent infringement. Which country has got it right? I like the way things are at the moment, with Germany, Holland and England vying with each other to perfect their respective infringement litigation procedures. I think patents can be the pilot, to reconcile England's common law system with mainland Europe's civil law procedures. Carry on please, patent litigator lads and lasses.

    Who needs a properly functioning European patent litigation system? Ultimately, it's the voters, isn't it?

  4. I'm confused. I thought the idea was to have an EU patent as a possible designation of an EP patent? In that case there's no need for the EPO to be subject to EU judicial control. The EPO is not an EU body. It's not subject to UK judicial control, or German judicial control or judicial control from any of the other contracting parties; why should the EU be different? After grant of the EP patent, it would be validated in the EU and would then be subject to EU law and to possible revocation under EU law with as much judicial control as the EU wants (the same as it works in any other contracting state).

    Someone please explain where I've gone wrong (I must admit that I haven't been making an effort to follow closely). Is the suggestion that you can apply directly for an EU patent at the EPO (not via the EP route)? Then I could see the judicial review argument being valid.

  5. From IPKat’s comments on CIPA’s press release, it apparently holds the view that what is required is a system that will make patent litigators (by which I think it means solicitors) happy, rather than one that will (a) happen and (b) get the job done at reasonable cost. The implicit criticism of EPO opposition proceedings is telling: they are not perfect (and certainly take way too long) but they provide a reasonably fair and predictable Europe-wide outcome at 10% of the cost of UK litigation. The fact that litigation solicitors want a Rolls Royce system that seeks perfection is understandable because they are the ones selling the Rollers, but I'm not sure that is what industry wants. Those of us who primarily make our living from "selling" patents would certainly prefer our clients to be able to "use" them at reasonable cost.

    Frankly, most of us don't care about the finer points of EU law; we all know that the EU will bend its own rules when it wants to do something and that the ECJ frequently enables this.


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