LIVE UPDATE: No agreement on seat of Unified Patent Court

Danish Minister Ole Sohn
 Moments ago (at least it was had it not been for the continued Blogger issues), a press conference was held following today's session of the Competitiveness Council - the last under the Danish Presidency (watch video here). The first issue that arose, unsurprisingly, related to the adoption of the unitary patent proposals. The Danish Minister for Business and Growth, Ole Sohn explained that as of today, no agreement on the seat of the Central Division had been reached. He said:
"I would like to start by looking at one of the issues which I would imagine is of interest and that is the question of the patent court. Adopting the European patent reform will be a major step forward to strengthen the competitiveness of European companies. A clear signal that we are taking concrete measures to boost growth and employment in Europe. Just to give you an example, today, it costs about €36,000 to obtain a patent in Europe whereas it only costs €2,000 in the US and €600 in China and that just goes to show the extent of the challenge we are facing and how important it is that we find a solution on the patent issue so in this way we can contribute to reinvigorating growth in Europe. The Council has done a lot of the ground work. There is one remaining issue - the location of the Central Division of the first instance court. We in the Danish Presidency have worked intensively on this since we started our Presidency to try and find a solution. Unfortunately, by today we have not found a solution that everyone can support. Unfortunately, obviously we very much regret that fact but I am an optimist. There are 31 days remaining of the Danish Presidency and the Heads of State of Government have committed themselves to finding a solution by the end of June. We still believe that even if we cannot solve it today, we will manage to solve it during the Danish Presidency."
Commissioner Barnier
Commissioner Barnier went on to say:
"There is also the very important and symbolic project that hundreds of thousands of companies have been waiting for - this unified patent that European business is eagerly awaiting so that it can stand on same footing as their US and Chinese coutnerparts. The number of patents that are submitted to the Chinese court increased to the tune of 30% per year so we really have no time to waste on this. Its an on-going process of course. Hopefully it will come to an end at the European Council. I submitted this proposal more than a year ago now and we hope that we will reach a result that is in line with the European economy."
Following a question from the press regarding how extensive and how long the Member States negotiated on the issue of the Unified Patent Court, Minister Sohn stated:
"The Danish Presidency has been negotiating on this since day 1. I don't know how many days but until the very last day of the Presidency and we have been discussing this in the Council and also bi-laterally with some of the key players and its still our view that we will be able to find a solution. We have come to the point that the only outstanding point is the location of the Central Division of the first instance court and as I said at the Council meeting."
Minister Sohn conintued by summarizing what the AmeriKat feels characterizes the long slow march to mediocrity in European legislative efforts:
"I appreciate the good arguments put forward by the countries who are putting forward their pitch, but obviously you try to get the person you love in life but sometimes you realize you got to live with the one you get. So people have to demonstrate that sort of flexibility here too. We are going to work really hard to achieve success by end of 2012."
A further question was posed by a member of the press asking whether the Council could explain to companies why the negotiations were taking so long. In reply, Minister Sohn stated:
"Could I start by stressing the fact that I hope and believe that we will arrive to a solution by the end of June, but there aren't any good arguments for not coming up with solution, if you are trying to explain this to European industry because for every day that goes by we are piling on additional costs for European industry to obtain EU patents compared to, as I said in my introduction, the costs in US and China. So there are not any good arguments, but solutions some time take time when there is more than one person involved in negotiations. It has taken a little longer than I would have liked. But as long as our target, and its been our target since Day 1, to get this sorted before July 2012 than I think we can still meet this target. But there are no good arguments for not arriving at a solution."
A question from Bloomberg asked the panel to identify the countries who were in the running for the seat of the Central Division. Reinforcing the lack of transparency regarding the entire process (see earlier post this morning), Minister Sohn stated:
"I think it would be wisest to continue the negotiations and discussions between the players within the Council and not so much in public debate because the more public it becomes the harder it is to arrive at a solution. It is well known that Germany, the UK, France and other countries are keen to obtain the court of first instance, but on the specific of the details I will tell you about at the end of June when we will hopefully have a final result."
Having been through this before,
its now time for the AmierKat's
head to slam against the table....
The AmeriKat imagines that many will join her in stating that her blood boiled regarding some of the statements made by Minister Sohn and Commissioner Barnier. Yet again, it seems that none of the concerns of European industry (not just the patent lawyers) regarding the current proposals have sunk in. Again we hear comments regarding the relative expense of the current system as opposed to US and China - not taking into account the realities of the patent application and grant fees in practice and the baselessness of some of these figures. Even more outrageous were the comments implying that European businesses are desperate that the currently proposed package be agreed. The AmeriKat has not spoken to ONE member from industry that wants this package - they'd rather have nothing than this, so she is unsure where this purported desperation is stemming.

Further, comments that there is only there being "one last outstanding issue" obviously does not accord with the previous understanding by practitioners and indeed, Baroness Wilcox and her team (see previous AmeriKat posts here), but of course who knows what happens behind the closed doors of the unitary patent negotiations. Unless an agreement can be reached in just over 2 weeks, it is unlikely that the European Parliament's scheduled reading and vote on 13 and 14 June will proceed.

The question is, of course, are the events of December's Competitiveness Council repeating itself? Is the "outstanding issue" on the location of the Central Division another delay tactic? Given the lack of transparency in this process, we will have to await Baroness Wilcox's report of the session to the House of Commons Scrutiny Committee and hopefully, their robust reply to clarify the truth in there being only one "last outstanding issue".
LIVE UPDATE: No agreement on seat of Unified Patent Court LIVE UPDATE:  No agreement on seat of Unified Patent Court Reviewed by Annsley Merelle Ward on Wednesday, May 30, 2012 Rating: 5


  1. It is all rather depressing. The numbers are so far away from reality and the idea that Europeans are at a disadvantage compared to others who use the European patent system but don't have a place of business here belies such misunderstanding.

  2. €2000 for a US patent and €600 for a Chinese one? We should all send our work to the new firm of Sohn and Barnier!

  3. Wilful blindness is everywhere you look. So too is the "confirmation bias". It is not that the politicians are out to do harm, it is just that, in a state of perpetual motion, they fall back on their common sense, and intuition, which leads them astray.

    But hey let's remain optimistic. I thought there was nothing that could be done to stop the anti-GM loonies trashing Rothamsted Plant Breeding Station. But there was, thanks to charities like "Sense About Science". Look at their website and find the pdf displaying the enormous number of messages of support, from ordinary sensible right-thinking people. it will gladden your heart and give you strength to keep on arguing what is right and countering the balderdash from the deliberately uninformed politicians.

  4. This news perhaps explains why some governments are so anxious to get the seat of the Central Division (and also why some would prefer no unified system at all than one with said central seat anywhere than their own city...).

    This said, I strongly suspect that that 3bn figure is just as spurious as those wielded by Mr. Barnier regarding the cost of patents...

  5. Infuriating and depressing in equal measure.

    Actually, scratch that, it's much more infuriating than depressing.

  6. Those who have not had personal experience of working ion the Civil Service and are used to things being decided on the basis of facts and evidence, often fail to appreciate that, where politics are concerned, the cart usually comes before the horse.

    The first thing that is decided is policy, the second step is the obtaining of evidence that supports the policy and ignoring or discrediting the evidence that points the other way.

    Some quotes from "Yes Minister" appear relevant to the present situation.

    "It is only totalitarian governments that suppress facts. In this country we simply take a democratic decision not to publish them."

    Sir Humphrey Appleby: Government policy has nothing to do with common sense.

    Bernard Woolley: [Discussing the Prime Minister's dilemma about education] He can't ignore facts.
    Sir Humphrey Appleby: If he can't ignore facts, he's got no business being a politician.

  7. If a robot can get a comment published on this blog does that mean it is not a robot. This is a situation that I cannot compute, cannot compute, cannot compute, cannot compute, aaaaagggggghhhhhhhh

  8. The costs to jobs and a national economy are matters that every government should take into consideration. No nation should fall on its sword for the 'good of Europe' or does anyone believe otherwise?

    As the new article above points out, Munich already has the EPO. Further centralisation would be akin to creating a single currency across Europe and calling it the Euro. Such a ludicrous thing that would benefit mainly Germany to the detriment of many others would clearly never happen because common sense and even that odd pseudo-science, called economics, would clearly prevail.

    I am not a robot!

  9. In a communiqué from the French CNCPI today, it is touted that Germany and the UK are blocking the Polish compromise of December 2001 according to which, the seat of the Division would have been Paris, despite the alleged support of 23 other nations (I imagine France was included in the 23 count). Certainly, the French interim government, through its minister for European affairs, is said to have come out in favour of pushing for Paris.

  10. Put the Central Division in Luxembourg. They speak both French and German and their English isn't too bad. At least we could then fill up with cheap petrol when there is a hearing.

    I am a robot (if that is not copyrighted).

  11. @Anon 8:48

    Methinks that should read "Polish compromise of December 2011"

  12. According to my opinion the court should be located in a country which does not have as official language English, French and German.
    In this way the location of the court will not affect, or will affect less the competition for professional services before the European court. This will also reduce the danger that only one or two legal cultures will influence the practice and the case law of the court, as it happens with EPO.
    If the court will be located in London or in Munich, it is more than likely that Chinese, Japanese, American, Dutch, Italian, Polish or Spanish patentee or alleged infringer will prefer to entrust respectively British or German lawyer with their cases. This would turn to a marginalization of other legal culture and providers for professional services from other countries.
    I think the decision over the location of the court should consider these aspects. Germany, France and UK have already got a significant result: they turned the (singular) linguistic regime of the EPO (which has nothing to do with the linguistic regime of the EU, see for instance the OAMI) to the linguistic regime of the Union Patent and of the Central Division. I do not think it would be appropriate if these countries would get also the central division. We have already seen with EPO which importance the location of the institution has for the recruitment and for the influence to the case law of the legal culture of the hosting countries.
    I would suggest as alternatives Poland, Italy or Netherlands. It is hardly to think that the legal scholarship of these countries will exercise a cultural hegemony over the court, or that German or British companies will entrust Dutch, polish or Italian lawyers with their cases, if the central division will be located in one of these three countries. These countries – I can imagine – would also have no problem at all if the president of the local division would be German or English.

  13. Excellent thought from that last anonymous. The way the Dutch play football is half way betwen the English and the German way. They function effortlessly in both English and German. They understand the legal systems of both their big neighbours. If the Central Division is going to pass, and some seat has to be found that is acceptable to all, please, let it be in orange Holland.


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