What the Dickens! EU proposals judicially roasted

Rigid, incapable of any change in direction and quite devoid of any sensitivity to the
needs and interests of small innovative industries in the European space -- the main
difference between the European Commission's unitary/unified patent team and a
row of plastic footballers is that the latter appear to be more amenable to reason.
If you were at the Chartered Institute of Patent Attorneys' CIPA Congress presidential dinner last night, you would have been privileged to enjoy an unusual treat. No, not the sight of this member of the IPKat team making a surprise and not wholly unsuccessful return to the world of table football (a.k.a. fußball/fussball) after a break of some 39 years, but something even more special: a critique of the current proposals for European patent reform that was coldly clinical, crisply analytical and entirely devoid of the rants and rhetoric which many readers relish can obscure the merits of the issues under review.  

The speaker who delivered this stunning dissection of the present proposals was Lord Justice Kitchin, a man who has earned an admirable reputation for fair-mindedeness, clear thinking and sound judgment, not for the grinding of legal and political axes.  It was this that made his words so powerful, their impact so striking.

After reviewing Charles Dickens' scathing descriptions of 19th century patent administration (The Circumlocution Office in Little Dorrit) and resource-exhausting litigation (Jarndyce v Jarndyce in Bleak House), Sir David described the objective which we all seek to achieve: effective and affordable access to justice in patent-related disputes not just in England and Wales (where the Patents County Court was given the judicial equivalent of a katpat) but throughout Europe.  There is no monopoly in this objective, which is shared by the European Union's policy makers as well as by interested parties -- litigants, their backers and shareholders, lawyers, patent attorneys, judges. The big problem is as to how this objective is to be achieved.

Since this Kat understands that Sir David's speech is to be published (though he's not sure where), he will not seek to replicate it in miniature here. He does however recommend that it be compulsory reading for anyone who has ever wondered why so many sensible, knowledgeable and experienced people have raised so many alarums over the helter-skelter descent from dignity to disaster, from laudable to laughable and from feasible to farcical.

Taking the perfectly plausible case of a small British company trading mainly in its domestic market but selling a few items abroad, Sir David outlined the sort of problems it might face if a patent infringement action were commenced in another country in which the patent owner sought a pan-European injunction. Observing how, if the validity of that patent were to be challenged and the outcome of any litigation appealed, that small company might find itself engaged in litigation spread between three foreign countries in circumstances in which it would be cheaper, easier and safer to go out of business than to contest the initial infringement claim [Merpel adds, this is emphatically not a purely British problem -- much the same sort of issues can arise wherever in the EU the SME defendant is located]. The position of such a company would again be remarkably comparable to that of Dickens' SME-inventor Daniel Doyce a century and a half ago.

When he has further news of when, where and how Sir David's talk is being promulgated, he will be sure to let you know.
What the Dickens! EU proposals judicially roasted What the Dickens! EU proposals judicially roasted Reviewed by Jeremy on Friday, October 12, 2012 Rating: 5


  1. Why do stable doors, closing them, and bolted horses come to mind?

  2. @Eric

    The problem is, there was never any opportunity to debate the contents of the proposals for the new court.

    A 'draft' proposal sprung from nowhere, which was not open to debate on the grounds that the proposers 'did not want to waste time negotiating specifics' before a decision was made as to the legality of the structure of the proposal. When it was found that the proposal had legal flaws, the mysterious backers of the court proposal amended the bits that they thought were necessary to ensure compliance with EU law, and then said to all interested parties "it's now far too late to re-open negotiations of specific procisions of the proposals", such as the dreaded bifurcation.

    There was never any opportunity for non-insiders to discuss, debate or influence the proposals; the bolt was only installed on the stable door after the horse had bolted.

  3. "effective and affordable access to justice in patent-related disputes"

    This is a joke in itself, UK is one of the most expensive country for patent litigation.

    Furthermore, procedural costs are only a tiny bit of the Total Cost of Litigation.

  4. Does Germany have more manufacturing industry than the rest of Europe put together despite bifurcation, because of it, or is bifurcation a red herring? How much more "patent savvy" is German industry than UK industry? Any answers?

  5. People like patent attorneys who are used to being able to present reasoned arguments in the expectation that decisions will take them into account, may find themselves in the same position as Alice when discovering that governments and the like tend behave like the Queen of Hearts in Lewis Carroll's "Alice's Adventures in Wonderland" :

    "No no" said the Queen. "Sentence first - verdict afterwards"

    "Stuff and nonsence" said Alice loudly. "The idea of having the sentence first!"

    Whereas Alice then woke up and found it was all a dream, for us it is reality.


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