Pagenberg: Unitary patent package tainted by lack of transparency

The AmeriKat tentatively testing
the quality of the sun this morning...

Good morning from the AmeriKat!  Today the Competitiveness Council meets to determine the fate of the unitary patent package (see previous posts here and here).  In the preceding days, Ministers from the Member States have been briefed by their government's staff, stakeholders and industry members and will no doubt be preparing for, as Baroness Wilcox characterized it during her evidence before the Scrutiny Committee, a session of "who can stay in the room the longest".  A press conference is scheduled later today after the Competitiveness Council's meeting (which the AmeriKat hopes to report on --  IT problems permitting).

Dr. Jochen Pagenberg

It is no overstatement that the profession and industry will nervously be watching events in Brussels today in the fear that the overzealous pursuit for a cheap, but costly, political victory will overrule the unified articulation by the patent community of their considered conclusion that the unitary patent package is inherently flawed.  The AmeriKat and IPKat have both reported and commented on the lack of transparency in the European legislative process.

The legislative process  by which we have reached the position in respect of the unitary patent is a prime example of this symptom of lawmaking.  This morning in advance of the meeting today, Dr Jochen Pagenberg (Bardehle Pagenberg) wrote to President Van Rompuy on the EU Patent Package.  Dr Pagenberg wrote in the following terms:

Dear President Van Rompuy,

I am writing to you in the above matter because of great concerns of part of industry and practitioners as to the present status of the patent package, the lack of information and cooperation from the instances in Brussels and how this matter has been and is being handled in the Council, the Parliament and the Commission. Representatives of German industry had therefore asked me to provide a summary of the present situation, and in the course of my research I detected a number of unusual incidents which happened during the legislative process in Brussels. You will find attached an article in its English version which had already been distributed in German four weeks ago and will be published in German in the journal GRUR in a few days.

I was a member of the Expert Committee of judges and attorneys of Dr Fröhlinger and have devoted more than 50% of my time in the last three years to this project, during two years as a president of the European Patent Lawyers Association. I thought that this was justified, since I had always hoped that five of the best patent judges in Europe and five of the most experienced litigators had been chosen by the Commission with the goal to reach the optimal result for a patent litigation system which would work in practice and thus become attractive for the users after its entry into force. It was the general hope of the future users that it would be affordable not only for big industry but also for SMEs as it had been promised over all those years in every document of the Commission and the Council.

In November of last year I became convinced that these goals had gradually – and secretly - been abandoned and that the Commission and the Council were no longer interested in the recommendations of its own experts. One member of the Judicial Committee of the EP Parliament even called the experts “lobbyists” during the debate on the Patent Regulation and voted with the majority of his colleagues against one of the basic recommendations of the experts, namely not to expand the jurisdiction of the European Court of Justice in the area of patent law by including substantive provisions on patent infringement into the draft Regulation. I therefore decided at the beginning of 2012 to leave the Expert Committee.

This abandonment of the original goals in addition occurred behind closed doors in an unprecedented process of legislation which would nearly have led to signatures of the Council under papers of the “patent package” which had never seen the light of a public discussion. All this you can read in the attached article.

It appears that we are again in a similar situation as in December, since dates for deliberations in Parliament have been announced and the users fear a signing of a text of the draft Agreement which they have never seen or discussed. You may not be informed of the details of the patent packageand its legal and practical deficiencies, but the details of how this dossier has been handled by the instances in Brussels over the last six months show such an amount of undemocratic behavior that few people in Europe would have imagined. I attach the two latest documents which have been cited in my paper for easy reference. [here and here]

That it is the official belief of the members of the General Secretariat of the Council to hide legislative texts from public discussion because they fear that otherwise users and the members of national parliaments would learn about negative impacts of the project and therefore would oppose and refuse ratification, is more than surprising. The same can be said about the Council as a whole which confirmed in its session of March 8 by a large majority that the respective unpublished papers should remain secret. But there are more incidents which also concern the Parliament and the Commission as you can see in my paper.

I think – and this belief is shared by everyone I have talked to during the last weeks – that it is your obligation to prevent that this important project will forever be tainted with these incidents during the legislative process and already for this reason will fail. There are in addition many flaws which have found their way into the texts as a result of political compromises which again have never been discussed with users. Compromises may be a necessity in politics sometimes, but not where the goal was to achieve the best of, or at least a better than, existing patent litigation systems. The multiplication of compromises has resulted in an unworkable solution which industry will no longer wish to use because of serious drafting errors of people who obviously have no practical experience in patent litigation and are not interested in any advice of those who have. 

The time until the end of the Danish presidency will be too short to devote enough time to this project. It is also too important for economic reasons, so that the Council should not treat it as an unwelcome side issue on the agenda besides the larger issue of the Euro crisis. Users have requested since more than half a year more time for being finally included in the deliberation process. There are a great number of points discussed in the report of the Scrutiny Committee of the UK. I have also made a few rather simple proposals in my paper which may serve as a starting point; but more detailed discussions will be needed.

As you may have learned first publications on the lack of transparency have become known in Germany already several weeks ago with articles in legal journals and commentaries in the daily press of which I attach one example. But a reaction from the Council has not become known so far. I will therefore send copies of this letter to the press and selected publications and I am looking forward to any comments you might have.

Please excuse the form of my letter, but time pressure did not leave any other possibility than sending this by email.

Very truly yours

Jochen Pagenberg    

The AmeriKat, IPKat and numerous practitioners support Dr Pagenberg's position and thank him for taking this step in writing to President Von Rompuy on these issues.  Readers of the IPKat will know that, since last autumn, the AmeriKat's frustration as to the lack of transparency in this process has escalated in recent months.  Calls for clear indications as to the procedure of the legislative process, the status of negotiations, disclosure of opinions and the very texts on which Member States are due to vote have all resulted in a deafening silence from Brussels.  The legislative process is meant to be open and transparent, so that those who will most be affected by laws are able to understand the scope and implications of a law by which they will soon be bound.  Merpel believes that refusing to open a dialogue with the public over its concerns regarding problems with the substantive provisions and lack of transparency smacks of arrogant politicians willing to sacrifice what is in the best interest of their electorate for a cheap political victory.

It may all be too late, however.  Indeed the AmeriKat understands that the location of the Central Division has already been secretly agreed a few days ago.  Of course that could just be a rumour, but will have to wait until this afternoon to find out.  In the meantime, the AmeriKat bids you a perhaps, apropos,  "au revoir ....".