Concerned Scrutiny Committee invites patent professionals to give evidence on proposed unitary patent system

The AmeriKat in full sheep get-up
ready to bleat on about
the Scrutiny Committee

Over a glass of wine after the AIPPI Seminar on HGS v Eli Lily  this past November (see post on case here), the AmeriKat could be heard bleating about the importance of the UK’s Parliament European Scrutiny Committee’s interest in the proposed unitary patent system to anyone who would listen to her – which was about 3 people. The seminar (report to follow once the holiday haze passes), took place a couple of days after the AmeriKat’s post on the Scrutiny Committee's latest report of 9 November 2011 on the proposed patent system. Their engagement in the issue, if not mere interest, could, she thought, be key to the effort in trying to fix vital provisions in the proposed unitary system before it was too late (see previous posts here and here).

A few of days ago, the latest report of the Scrutiny Committee was published online following their 20 December meeting. The report updated the Scrutiny Committee's position in respect of the proposed unitary patent system following Baroness Wilcox’s (Parliamentary Under-Secretary for Business, Innovation and Skill) letter of 9 December 2011, together with letters in response from CIPA and Mr. Andrew Waugh QC’s of Three New Square (letters here and here, respectively).

The report contained several pleasant surprises but paramount of all was the recognition by the Committee of the seriousness of and widespread opposition to the current draft proposals on the unitary patent and unified court (see Draft Agreement and Proposed Regulation - this compromise is now finally on the Council's website here). The Committee, in recognizing the legal impact of the regulation to British and European business, will be inviting representative organizations, including CIPA and EPLAW and Baroness WIlcox to give evidence to the Scrutiny Committee in the upcoming weeks.  The Scrutiny Committee's conclusion stated:

“We are struck, again, by the strength of opposition to this proposal and the linked Patent Regulation from organisations representing the patent profession — both nationally in the form of the views expressed by the Chartered Institute of Patent Attorneys, and within the EU of the European Patent Lawyers Association (EPLAW). We note that, besides the recent remarks of the President EPLAW cited earlier in this Report, EPLAW issued a resolution on 29 October 2011 on the Patent Regulation and the unified patent court concluding that:

• the inclusion of Articles 6-8 in the Patent Regulation was a serious error; and
• extending the jurisdiction of the Court of Justice to consider substantive patent law should be avoided: patent litigants need an efficient and predictable procedure before highly experienced judges which they would not get in proceedings which would include referrals on substantive law to the Court of Justice.

We are grateful to the Minister for her early response to the questions raised in our last Report. Her answers do not, however, allay our concerns about the international agreement, and so we do not propose to release the document from scrutiny. Principal among those concerns are the effect of the non-exclusive jurisdiction of the unified patent court on small businesses seeking to enforce EPO patents through national courts and the jurisdiction of the Court of Justice being extended to cover the infringement of patents. From the submissions we have received, there appears to be a substantial body of expert opinion which thinks the Court of Justice would be wholly unsuited to this task, with profoundly negative consequences for the enforcement of intellectual property rights across the EU. If, however, the Minister can point us to a body of countervailing expert opinion which welcomes the advent of the Court of Justice's involvement, we would be grateful to review it.

We have heard informally from the Minister's officials that the signing ceremony planned in Warsaw for 22 December is now unlikely to take place. Although unaware of the reasons for this, obviously we welcome this news. And we urge the Government to seek to persuade the current and next Presidencies to allow for significantly more time for effective national scrutiny of the draft agreement…

Given the legal impact of the Patent regulation and the unified patent court domestically, we will be inviting representative organisations from the patent profession to give evidence to us in the New Year. We would also be grateful to the Minister if, on the same occasion, she would attend to give evidence too. Our officials will be in touch to arrange this…”

The Committee has not only called for evidence on the issue, but also requested that Baroness Wilcox disclose a

“redacted version of the agreement, as a way of avoiding the constraints of a limité Council document, which conceals negotiating positions but sets out the contents of the draft Articles to date. Or, alternatively, to provide a full explanation of the agreement in a Ministerial letter. We also ask that the Minister provide an explanation of each Article in an accompanying letter or Explanatory Memorandum.”

Otherwise, the Committee recognized, their task in scrutinizing the agreement would continue to be made considerably harder given the nature of the negotiations. 

The AmeriKat could not be more pleased with this response from the Scrutiny Committee – especially given that their November conclusion consisted solely of four very neutral and measured sentences stating that the proposals would continue to remain under scrutiny. So what happened in the intervening 6 weeks to witness such a sea change? It seems some good old fashioned democratic engagement and industry concern, including a letter from the Confederation of British Industry (here), was responsible.

The Danish flag on a t-shirt - did you
need a caption for that?

Now with the Danish Presidency at the helm, some are questioning whether the unitary patent proposals will be pushed through with the same momentum as under the Polish Presidency or whether they will languish on the sidelines. With an upcoming plenary vote by MEPS to take place in February (although there is some rumor it will occur this month), the AmeriKat will be interested to see how the Danish presidency will handle this issue. According to this blog post on the Kluwer Patent Blog by Anders Valentin of Danish law firm Horten, apparently the Danes are also concerned about the current proposals and left and right-wing parties have demanded a referendum on whether Denmark should join the unitary system.  

The AmeriKat anticipates that in the next few weeks, as the Danish presidency sets its tone for the upcoming year, we will be given a better understanding of how the proposals will progress, but for now the future of the proposals seem uncertain.  The only thing that is clear is that the unified voice of the European patent community is being heard by some national governments. 

p.s. To save readers' sanity and space, the AmeriKat has not reported on the letters and events leading up to the Scrutiny Committee's latest report but she strongly urges readers to gander through the Scrutiny Committee's previous report of 7 December 2011 (here) which reports on earlier letters from Baroness Wilcox and CIPA.