Delays, drafts and distinguished discussants: the unitary patent moves on

The AmeriKat prefers keyboards
to chairs for naptime - not only are they
warmer but they are sure to be required for
use  by someone (which makes them
all the more desirable)

Last week the AmeriKat reported on the latest status of the unitary patent proposals following Baroness Wilcox's appearance before the House of Lord's Sub-Committee on EU Affairs. From that hearing she (the AmeriKat, that is, not Baroness Wilcox) was able to piece together that (i) there may still opportunity to negotiate amendments to the Regulation, namely on Articles 6 to 8, (ii) the location of the Central Division has hit a roadblock with a decision expected from the heads of state at some unspecified point in the future and (iii) the stated June 2012 deadline to reach agreement on the proposals may not be met. All in all, this was greeted as good news by the patent profession, industry and academics who have been tirelessly campaigning to slow down the process in order for necessary amendments to be taken into account in the Proposed Regulation and Draft Agreement.

Supporting the view that the profession and industry have a bit more breathing room, on Monday and Tuesday this week following the meeting of the Competitiveness Council a press release was issued which stated that Member States had again confirmed their involvement to reach a resolution on the patent package, the latest date to do so would be June 2012:

"The Presidency recalled the statement made on 30 January by the heads of state and government of the member states participating in the enhanced cooperation for the creation of unitary patent protection to reaching a final agreement on the last outstanding issue in the patent package at the latest in June 2012 (5/12, point 4)." [Of course, the AmeriKat reminds readers that this previous statement was subject to particular scrutiny by the House of Common's Scrutiny Committee where it was stated that the "last outstanding issue" was an over-simplification of the actual position.]

All of this naturally means that, while politicians negotiate on the substantive provisions and court locations, there is a degree of waiting around for those us inhabiting the less rarefied air of European patent politics. Readers may think they can now sink comfortably into their office chairs, switch off and await further news. "Maybe", says the AmeriKat, "But not for long ..."

Under Article 22 of the Draft Agreement, the Rules of Procedure will lay down the details of proceedings before the unified patent court, with the aim that the Rules will

"guarantee that decisions of the Court are of the highest quality and that proceedings are organized in the most efficient and cost effect manner. They shall ensure a fair balance between the legitimate interests of all parties. They shall provide for the required level of discretion for the judges without impairing predictability of proceedings for the parties".

The Committee of Seven
 -- a happy choice of number
between 6 and  8

The current draft of the Rules of Procedure from 2009 ["If you can call that 'current'", hisses Merpel], with some 400-odd provisions, is now before the newly formed Committee for the Rules of Procedure. The Committee is formed of members from four Member States -- Netherlands, Germany, UK and France -- with a patent practitioner and judge from each Member State, save for the Netherlands. The illustrious panel, chaired by Kevin Mooney (Simmons & Simmons), is comprised of Willem Hoyng (Hoyng Monegier), Pierre Véron (Véron and Associates ), Alice Pézard (Judge, Cour de Cassation), Winfried Tilmann (Of Counsel, Hogan Lovells), Dr. Klaus Grabinski ( Judge with German Federal Court of Justice, the Bundesgerichtshof) and Mr Justice Floyd (High Court of England and Wales). [Or should we start calling them 'The Magnificent Seven'?, asks the AmeriKat]

Speaking with the AmeriKat yesterday morning, Mr Mooney explained that his aim was to make the process as "open and inclusive as possible". He explained that the Committee will be spending the weekend working on the draft Rules in the hope that, in a short period of time, and ideally by the end of March, a draft will be released to interested organizations for their review and comment. The AmeriKat understands there will be a high level of engagement and involvement with industry and professional organizations which, it is hoped, will allow substantial refinement of the Rules as soon as possible. A further draft will then be released for public discussion.

As discussed during the House of Commons Scrutiny Committee hearings, some of the problems that are inherent in the substantive provision may be somewhat alleviated by the provisions in the Rules of Procedure -- for example, control on time limits where there are bifurcated proceedings to ensure there is no lengthy delay between validity and infringement proceedings. It is thus an important step that a Committee of distinguished members from several Member States has been formed and will now be tackling the Rules. 

Kevin Mooney, Chair of Committee
on Rules of Procedure

Although the formation of the Committee does not in anyway change, negate or lessen the vital concerns that the profession and industry have in respect of the substantive provisions, certainty as to the Rules will at least provide the profession and users further clarity as to the nature of the unitary patent beast that they are currently facing. The AmeriKat also believes there is much to be said for having an official Committee with experts pooled from various Member States who will give voice to and will address the issues that have been concerning the profession for so long.  Further, given the Committee's geographical legitimacy, their views and comments will hopefully not be dismissed as being a voice of any particular "interest party" or national interest.

Admittedly, despite her earlier comment, the AmeriKat says that readers can relax a little bit while the Committee hunkers down for what will surely be the first in a long line of detailed discussions this weekend. But until then, the profession could perhaps preoccupy themselves with some extracurricular reading. Merpel suggests that the opinion from the Commission's legal service on why Articles 6 to 8 must be included in the Regulation would be a good start.

"I like your suggestion, Merpel, but it's difficult to read something we have never seen..." says the IPKat, "Are we sure it exists?".  The AmeriKat says nothing, as she has already scampered off to see if the Commission has finally disclosed it...