The altar of expediency

Before Europe's patent practitioners burn the old books
on patent litigation, let's all be sure that we are happy
with the contents of the new ones ...
That Unified Patent Court which has so divided opinion in Europe has been very much in the IPKat's mind in recent days.  The problem is that, while most people are either enthusiastic or at least accepting of the idea of having a Unified Patent Court for the European Union's 27 Member States, many experts are anxious about the actual details and a simple Kat could be forgiven that everyone seems to want a different one.

Anyway, the Draft agreement on a Unified Patent Court and draft Statute of 14 June 2011 has now been examined, weighed, measured, pondered, praised, criticised, printed out and converted into fleets of paper darts -- and there is no doubt that there are some serious problems which remain to be resolved.

Here in the United Kingdom, the grandly-named EU Patent Reform Consultation Group (concerning which see CIPA, August 2011, pages 488-490) formed a sub-group to examine the Draft Agreement.  The sub-group did not consist of a bunch of conscripts who had been dragged from the drinking houses of Holborn, sobered up and then instructed to moan about the Draft Agreement; rather, it was a select gathering of some of the finest patent experts on this part of the planet -- academics, practitioners, patent owners and even a blogger -- most of whom are, it may gratifyingly be said, friends of the IPKat even if, as indicated, none of them has [recently, says Merpel] been dragged from any of the drinking houses of Holborn.

What points have been troubling the sub-group? Here are some of them, in no particular order (though you can read them all for yourself in full in the sub-group's Concerns of Principle paper, here):
  • Momentum towards political adoption this year is dangerous. It appears that the Commission and the Presidency of the European Union expect to secure adoption of the Draft in political terms by the end  of 2011 [that's 100 days from now] and hope for a diplomatic conference to get it signed up under the Danish Presidency during the first six months of 2012 [the London Olympics start on 27 July ...]. This isn't a huge amount of time, given the number of weekends and holidays between now and then and the fact that the various problems posed by the task of creating a workable Unified Patent Court system have to be solved by people, not by calendars.
  • There is clearly still much that is unsatisfactory about the substance of the proposal as it stands. Annoyingly for the practitioners who will have to work with the system if it is to confer any genuine benefit and not be a disaster, some of the substantive points which trouble them relate to matters that have already been agreed at political level, of which the most significant in this Kat's opinion is the requirement to have two national judges in the proposed local divisions. Given that this has been agreed at the political level, it will be a difficult subject to revisit -- but it's easier to revisit it now than to live with it until the end of time, which may be the earliest that the proposed system can expect to be changed once it has been put into operation. Other substantive points are more technical, as enthusiastic readers will see if they care to peruse Sections 15 and 17 of the Concerns of Principle paper.  
  • The drafting of the Draft is none too felicitous, since many bits of it are in need of clarification. The sub-group's marked-up copy testifies to this, since it bears over 100 corrections or amendments: a sure indication of the fact that there is still a lot to do.

  • Costs, costs, costs ... Those silly litigants will keep ask about them.  Does it really matter to them? Surely not. Can't they see that it doesn't matter how much it will cost them, so long as they remember that the Unified Patent Court is the most politically expedient compromise that money can buy? On a less emotive note, a complaint that is made about many national systems, including that of England and Wales, is that patent litigation is too expensive. A related complaint is that it is often difficult to gain a reliable notion of how much it is likely to cost.. Patent litigation is an exercise in risk management, and this requires more guidance about the likely cost, but there is frustratingly little clarity on this topic. While it might be unrealistic to start with a consideration of what litigants are prepared to spend and then work backwards towards a system that literally fits the bill, the exercise would help draw attention to the importance of adequate provisions for costs.

  • The provisions giving the Unified Patent Court exclusive jurisdiction over European patents, which you will find in Articles 3 and 58, have struck fear into the heart of many a robust corporation. Not every litigant is happy to risk its very existence in an untried and untested court, untrammeled by practice and precedent, and the case in favour of extending the ability to opt out is strong.  Also, there is an old saying that the proof of the pudding is in the eating.  If the court is good, it will be used. If it is not, one should not be forced to use it -- a point made in Section 5 of the Concerns of Principle.
The IPKat is convinced that the sub-group's work proves convincingly that a large number of issues need to be addressed and reiterates that the mere fact that this means reopening issues that many would see as agreed is no reason for not addressing them.  To do so otherwise would be analogous to refusing to check the map when you're heading in the wrong direction because you've achieved prior consensus as to which was the right road to take.  Merpel bets that there must be other countries whose patent experts are having, or have had, similar thoughts, and she hopes that they will make their anxieties and their preferences known too.

The IPKat's favourite means of resolving disputes:
much cheaper than litigation; much quicker too --
and a lot more fun! (Photo by Cathcat).
While some folk may maintain that the occasionally irreverent and sometimes humorous comments made by a pair of fictional Kats do not deserve to be taken seriously, this blog urges readers not to confuse the medium with the message.  The Unified Patent Court is an important project with potentially almost unimaginably important consequences for Europe's hard-pressed economies, innovative industries and manufacturing sectors.  It has taken Europe several centuries of organic evolution to develop the system which we have today, centuries of trial and error, experiment and improvement, measured and deliberate thought and a shared sense of what it is we are trying to achieve. Let us not throw it all away in a matter of months for the sake of speed, a frail, vulnerable and beautiful ideal sacrificed on the altar of expediency.
The altar of expediency The altar of expediency Reviewed by Jeremy on Thursday, September 22, 2011 Rating: 5


  1. •The drafting of the Draft is none too felicitous, since many bits of it are in need of clarification. The sub-group's marked-up copy testifies to this, since it bears over 100 corrections or amendments: a sure indication of the fact that there is still a lot to do.

    Some of those modifications are slightly self-serving, aren't they? In particular those made to Art. 28 seem clearly designed in favour of CIPA members...

  2. I Just don't understand why “the EU is no longer a party to the Agreement is a consequence of the recent ECJ decision”. I have read quite the opposite in ECJ Opinion of March 8th.

    Actually I doubt that an MS-only agreement without EU is compliant with EU Treaties. The Concerns of Principles seems to share this doubt by asking (p. 8) “a specific permission in the implementing Regulation [on the unitary patent] for Member States to enter into the Agreement”.

  3. I am encouraged by the initiative taken by the group of UK lawyers (including judges), in particular their focused objections to the possibility of 'bifurcation'. Anyone who has been involved in multi-jurisdictional electronics/telecoms litigation over the past few years will be aware of how many dubious patents there are in these fields, and how the German system allows these patents to be used to threaten productive businesses without any danger of losing the patent.

    A politically-expedient compromise to the current bifurcation dispute would be to allow courts to bifurcate validity and infringement only where the parties agree. This allows the courts to 'maintain flexibility', which was the euphimistic terminology used when the draft Unified Patent Court Agreement (or whatever it was called initially) was first published in 2009, but a properly advised defendant would rarely agree to the issues being bifurcated.

    Something that is not covered in the UK group's submissions is the lack of harmonisation of infringement laws across the EU. Although the proposed Unitary Patent Regulation or the Agreement itself may contain infringement provisions which are closely based on the old CPC, and which have largely been implemented into EU Member State national laws, the approach taken to construction of claims and determining the scope of claims differs markedly across Europe. For example, the UK approach to claim construction exmplified in Amgen v TKT is very different to the doctrine of equivalents adopted by the German courts. These different approaches can be very significant in practice.

  4. That last anon writes as one with experience of litigating electronics/telecoms patents in England and Germany. Settling the ambit of a claim is a delicate issue. I wonder: how many of the judges construing such claims, around Europe today, even understand the contribution to the art made by the subject matter claimed?


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