Tea and Sympathy? Baroness Wilcox's appearance before the Scrutiny Committee on the unitary patent proposals (Part II)

Mr. Kelvin Hopkins MP

Mr. Kelvin Hopkins MP turned to the question of the impact assessment and referred to the issue that the Committee had heard the previous week that the impact assessment was out of date given that the EU was no longer going to fund the setting up and running of the Court system.  Ms. Coleman’s reply seemed to indicate that this had been factored into calculations – but the AmeriKat is unsure whether her saying that the UK was aware that there needed to be contributions from Member States, was the same as saying that this fact was the basis of the impact assessments.  She also stated that the Government’s view was that the system would be “self-funded” by its users through Court fees.   ["Those would be quite high court fees, would they not? “ asks Merpel]  Merpel’s point was raised by Mr. Michael Connarty MP who picked up this point in relation to the SMEs who would be having to fund this court – a court which appeared to be much more expensive than the current system.

Mr. Michael Connarty MP

Mr. Connarty MP continued to his question relating to the EU Council’s statement issued last Monday which confirmed that the EU intended to reach final agreement on the “last outstanding issue on the patent package”.  He asked the Minister to explain why despite stakeholders being incredibly panicked about the substantive system as a whole, the only thing that seemed to be outstanding, according to the EU Council’s statement, was the location of the court.  He asked the unanswered question that has exasperated the AmeriKat for several months about whether the negotiations have really come to the point where the only thing to be decided is the seat of the Central Division

 “And if it’s come to that why can’t we be honest about it?”

Baroness Wilcox began to answer the question by emphasizing the importance for SME’s to protect and enforce their patents quickly and cheaply throughout the entire EU.  Mr. Cannarty MP interrupted the Minister stating that he did not need to be lectured  as he had been on the Committee since 1998 and had followed this proposal in some detail.  He repeated that his only question was whether or not the only thing outstanding was the seat of the court.  Mr. Feinson stated that:

“One of the problems that have been bedeviled this dossier is that there is political interest in certain in high profile issues and underneath that there is an awful lot of technical detail.  I certainly do not recognize what was in the EU Council communiqué as being the situation in the negotiations.  I think it’s a simplification of the situation in the negotiations.  There is a negotiation where there is a question of the location of the court on one hand and a jockeying for position - horse trading - on the technical issues”

The kind of (be)-devilling the AmeriKat likes to see....

with differing issues being addressed by different Member States.  He stated that the Danish Presidency is trying to pick up these concerns and issues in bilateral discussions with the Member States.  The United Kingdom is currently having those bilateral discussions with the Danish Presidency.  He stated, therefore, that he thought the statement from the EU Council was a “gross simplification”  Mr. Cannarty MP asked Mr. Feinson  to explain which issues were being discussed.  He stated that the removal of Articles 6 to 8 was under discussion as one of the biggest requests.  Equally, was the concern on the issue of bifurcation which Mr. Feinson was being dealt with in reference to how bifurcation could be managed vis-à-vis the Rules of Procedure. 

In response to a question from Mr. Cash MP, Baroness Wilcox stated that she has met with Business Secretary Vince Cable regularly and officials from the IPO on this issue.  She also stated that the one thing the Ministry of Business will be sure of is that they would not sign up to anything that would be disadvantageous for SMEs.  Echoing the evidence of the experts the previous week, she also stated that it would be foolish for the UK not to be part of the discussion or in the negotiating rooms shaping the court and the rules.  Mr. Cash MP asked if there was then still scope for amendments.  Baroness Wilcox replied stating: 

"There is scope all the way along for amendments.  I find it very difficult to work in this way, in the Competitiveness Council - I have had to get used to it.  It does seem that if you keep talking and you stay in the room long enough, then you are likely to get the things that will help this process move forward.  We are fortunate that there are other countries who feel as we do, and therefore are prepared to support us.  That does make things very much easier. "

Mr. Stephen Phillips MP

The next “questioner” from the Committee was Mr. Stephen Phillips MP – who from last time – established himself as a  pointed examiner of witnesses (which may have something to do with being a QC).  In a question that was designed to illicit a “yes” or “no” answer, i.e,”Is it your evidence to this committee that the EU Council’s statement is untrue and there is more than one outstanding issue?”, Mr. Fienson understandably replied with “I think it’s a simplification.”  Mr. Phillips MP persisted with trying to get Mr. Fienson to say that the EU Council’s statement was incorrect, but Mr. Fienson was very diplomatic in refusing to answer “yes” or “no” that question.

Mr. Phillips MP turned to the question of bifurcation, asking how the current proposals could assist SMEs or any British company in protecting their rights inexpensively if they could be faced with bifurcated litigation and the problems that bifurcation can entail.  The witnesses did not really answer and to the AmeriKat greatly stumbled over the question.  Mr. Fienson did state that these effects were hoped to be addressed by the Rules of Procedure.  Mr. Phillips MP questioned whether the price of agreeing to the patent court was at the cost of exposing UK business to German bifurcation and that the issue of bifurcation should have been a line drawn in the sand.  Mr. Feinson admitted that “if we had it our way we would not allow for bifurcation in this agreement”  but that it was something that had been dealt with long ago to keep the proposals afloat.  Mr. Phillips MP replied stating that this pretty much confirmed his statement about the price of agreeing on the unitary patent system was the cost of bifurcation.  Mr. Feinson said that he respectfully disagreed and that the UK was holding on the Rules of Procedure to ensure the timing and treatment of validity and infringement cases would lessen the worst effects of bifurcation.   Mr. Feinson stated because of the UK’s staunch position on this and on not agreeing to sign anything until the final version of the Rules of Procedure were produced, people thought they “were being darn awkward” during the negotiating process.  

The Unified Patent Court system - a haven for
trolls and forum shoppers?

Mr. Phillips MP also asked whether the UPC could be a charter for forum-shopping.  Mr. Fernandes replied stating that there were already rules to limit forum shopping and forum shopping existed in the current system already.  However, again the replies were not, at least to the AmeriKat, fully answering the questions.   Mr.  Phillips MP then closed his questioning saying that it had appeared to him that the Minister and her team had not done a lot of thinking on this issue and that no lines in the sand appeared to have been drawn to protect British interests, which there ought to be.  Baroness Wilcox stated that she viewed the Unified Patent Court as an opportunity to improve things within the EU and to move closer to away of proceeding  with the protection of patents that is better than the current system.  [It was during this line of questioning, that an exasperated Mr. Connarty MP seemed to have reached his limit and criticized the witnesses for not answering the questions of a Committee of the House in a straightforward manner.]

The session came to an early close because Baroness Wilcox had to fly to Copenhagen.  Mr. Cash MP stated that the session was adjourned and was to be continued at another day and time.  

What's Next?

Time is running out to get
your evidence to the
Scrutiny Committee...

Since the first Committee hearing with evidence given by the IP Bar Association, CIPA and EPLAW, the AmeriKat knows that the requested paper on issues and questions raised during that hearing has been submitted by the IP Bar Association to the Scrutiny Committee (to be published when the all-clear horn is sounded by the powers that be).  After Baroness Wilcox finishes her evidence before the House of Commons European Scrutiny Committee she will then be before the House of Lords EU Select Committee who requested her presence last December.  The AmeriKat is unsure what date Baroness Wilcox will be before the House of Lords.  However she does know, by virtue of a press release from the House of Commons, that that Committee will not be accepting further new written evidence after 7 February 2012.  So if any of the readers out there wish to get in some final comments to the Scrutiny Committee you have 2 days to do so!  

In the meantime, there is still a lot of momentum in the UK and in Europe regarding the substantive provisions of the proposals.  The AmeriKat is heartened to hear, according to Baroness Wilcox, that the UK government and other Member States governments are concerned and are taking the time to negotiate on these key substantive issues in Brussels.  However, her positive outlook is sure to be dashed by the next over-egged European press release....

To listen to the Scrutiny Committee's questioning of Baroness Wilcox click here and fast forward to 15:14.