Those pesky patent proposals: now it's CIPA's turn

The Chartered Institute of Patent Attorneys (CIPA) has just issued a press release concerning the thumbs-down which the Advocate Generals of the Court of Justice have given to the (questionable) legality of the proposed European patent and patent courts. Says the press release:

"‘The European Court of Justice will have to take a pragmatic interpretation of the Advocate General’s Opinion if we are to see any possibility of a single European patent and a common European patents court system emerging from this process”, says Vicki Salmon, speaking for ... CIPA. The Opinion’s headline finding appears to come down against the legality of the proposed arrangement for a single European patent and new European Patent Courts, concluding that: “As it stands at present, the envisaged agreement creating a unified patent litigation system is incompatible with the treaties”. However, CIPA believes that the European Court of Justice (ECJ) can - and should – put the undoubted benefits of the proposals ahead of issues of legal policy, if long-awaited changes to the patent system in Europe are to have any chance of being realised [Assessing the benefits of proposals is not exactly what the Court's judges are paid -- or indeed trained -- to do, and since they're even less answerable to the EU electorate than its elected representatives and appointed office holders, that's probably just as well].

“The Advocate General’s Opinion does allow that there is nothing in the European Union Treaties that should specifically prevent a single European patent or a common European Patents Court system from being set up,” says Vicki Salmon. “We welcome this [This is small comfort: the reason why there's nothing in the Treaties to prohibit it is probably because the subject never occurred to those who negotiated and signed them]. There are enormous commercial benefits to be gained – in the UK and across Europe – for companies who would have only a single European patent and a common patents court system to deal with. This has been the vision since the European Patent Office was set up in the early 1970s by a group of nations who were determined to make it happen. The EPO has remained separate to the EU justice system and, for all its faults, is widely considered to have been a great success [Much of the EPO's work has indeed been acclaimed, though not everyone is enamoured of its dispute resolution mechanism in opposition proceedings -- and it's dispute resolution that we're worried about here]. If governments and businesses across Europe want it – and most of them do seem to - there is no fundamental reason why the countries involved should not now take the next big step and put in place a single European Patent and common patents court system [though the next big step may be a rewriting of the EU's fundamental laws before the smaller step of emplacing patent courts can be taken].

“The proposed treaty needs proper discussion and debate and the views of users – those companies, groups and individuals who have the most to gain from the proposed new system – need to be taken into account.” [Agreed -- and this discussion has been woefully deficient. One suspects that some good folk in high places have been impressed by ACTA-style secrecy -- which the European Parliament itself decries -- and thought it might come in handy here]

Industry and the legal profession are surprised at the unusual way Advocate General Juliane Kokott's Opinion [the Opinion is said to be that of all the AGs, not just Juliane's] has been allowed to seep into the public domain, rather than being formerly announced. “Patent attorneys are not the only group to be taken aback at the way this long-awaited legal opinion mysteriously appeared last week on a patent lawyer’s blog [naughty!] – and only in French [even naughtier, especially during a month in which les Français are traditionally on les vacances] - over six weeks after the date of 2 July given on the document. There still appears to be no sign of it in any of the places where you would normally expect something of this importance to published, such as the websites of the European Court of Justice, the European Patent Office or the European Commission [well, some people actually expect it to be seen by readers of this weblog.  This item, posted on 23 August, reached over 9,000 readers in 24 hours; another 1,050 readers received or accessed this item during the same period]”.

The IPKat thinks CIPA is expecting too much from the Court of Justice, but strongly agrees with the Institute's call for a fuller debate.  He still thinks that we've heard a lot from those with official institutional briefs and idealists, but rather too little from patent litigators and from small and medium-sized businesses -- both as potential plaintiffs and as likely defendants.  Also, in his view, there's no point in setting arbitrary deadlines and rushing it: it's better to take a few years longer if need be, attending to the detail as well as the principle and making sure that everyone knows what the new system is and how it will work before activating it.  The patent system is a vastly complex, highly subtle and tremendously flexible institution which has evolved over many centuries: this evolution has been mainly in response to users' needs.  It is now less clear than it ever has been as to what users' needs are, since we are well past the days when one-product-one-patent was the norm.  And if constitutional or other reform is required before the desired steps can be taken, so be it.

Merpel says most Kats only have nine lives.  My colleague is obviously expecting rather more, if he expects to be around when the results of his preferred approach might be expected to come to fruition.