Are EU ministers driving us towards a European patent disaster? (UPDATE)

From her basket, the AmeriKat
steadies her gaze on getting
better and on the Unitary Patent debate

Good morning, from the Amerikat! Monday is here and there is more to report on the proposed Unitary Patent and Unified Patent Court. Although still curled up in her cat basket with tonsillitis, the AmeriKat knows she is not alone in being horrified at the speed that this runaway legislative train is hurtling towards a pan-European patent disaster. 

Readers will know from her posting on Friday night that there is a meeting of the Competitiveness Council this morning where ministers will debate on the creation of unitary patent protection, translation arrangements and the unified patent court.  Last Thursday, to the surprise of many, EU Parliament’s rapporteurs for the Legal Affairs Committee struck a political agreement with the Polish Presidency on the latest draft of the Draft Agreement (Kat post here). This morning the Polish Presidency hopes to obtain agreement on a number of “outstanding, politically sensitive issues” including the seat of the Unified Patent Court. Agreement on the proposals will have to be confirmed by both the Parliament (after a vote in committee on 19 and 20 December) and the Council.

The complexity of the proposed court structure, lack of clarity on financing, the expertise of the appointed judges, the dubious assertions that the court will be cost effective and further problems plague the draft agreement and proposals. Of most universal concern by the patent profession is that of Articles 6 to 8 of the Proposed Regulation which deals with direct infringement, indirect infringement and limitations. Articles 6 to 8 set out the substantive law on patent infringement and are based upon the Articles 25-27 of the failed Community Patent Convention 1989. Inclusion of Articles 6 to 8 in the Proposed Regulation (proposed amendments here and here), and not just in the Draft Agreement, will "make substantive patent law part of EU legal order." Patent cases involving a “new” unitary patent would be susceptible to the preliminary ruling jurisdiction of the Court of Justice of the European Union (CJEU/ECJ), while “old” European patents would not.  Cue the ensuing costs, years of delays, uncertainty and substantive patent law being interpreted by a panel of judges who do not possess the skills and level of expertise that the judges referring the questions in the first place are required to possess under Article 10 of the Draft Agreement. [“And we all know what a crackerjack job the CJEU has done with some of its other intellectual property law referrals….”, hisses the AmeriKat]. The entire “package” as currently proposed appears to be the antithesis of what a European unitary patent was meant to achieve in the first place – being a cost-effective, efficient, certain and user-friendly system.

In his speech at last week’s European Patent Lawyers Association (EPLAW) Congress,  Dr. Jochen Pagenberg -- Past President of EPLAW (as of Friday, when his term ended, Dr. Christian Gassauer-Fleissner now assumes the Presidency), one of the founding partners of eminent German-based law firm Bardehle Pagenberg and IPKat friend -- succinctly summed the proposals as follows:

“If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible. If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible. And if somebody intended to lay a solid ground for failure of this - at some time very promising - project, then he will probably succeed.”

With all these problems and the concerns of so many professional bodies warning against the EU rushing into such poorly thought through legislation you would think that the MEPs, especially the Rapporteurs for the proposals would have taken notice. Apparently not.

Yesterday evening the AmeriKat received an e-mail from Dr. Pagenberg that alerted her to the video of the debate in the Legal Affairs Committee that took place on 21 November 2011 on the patent proposals and Articles 6 to 8.  The video is available online  here (from minute 15:27). The Amerikat watched and was disappointed (although sadly not surprised) by what she heard. However, a voice of reason was heard from Cecilia Wikström, MEP from Sweden, who argued strongly for the removal of Articles 6-8 of the Regulation and their insertion into the Draft Agreement, instead. Citing the unanimous resolution of the Intellectual Property Judges Association, extracts of Professor Krasser's opinion (here), Professor Sir Robin Jacob’s opinion (here) and Dr. Pagenberg, Ms. Wikström clearly explained the legal consequences of the inclusion of Articles 6 to 8, the negative practical consequences for the end-users and the imperative need to remove the articles. She said in closing (please note the AmeriKat could not find a transcript so had to transcribe the quotes from the debate herself; please alert her to any material errors):

Ms. Cecilia Wikstrom  

“This is the position of the most experienced academics and experts of Europe on patent law. My friends and colleagues, who are we in this room not to follow their advice - their unanimous advice? And the position is further shared, for example, by Business Europe and the International Chamber of Commerce. Although I have been raising this issue with many people, thus far I have not until now heard one single argument on the substance in favor of the inclusion of these articles in the Regulation creating the unitary patent. The only argument I have heard against this proposal is that some lawyers, notably in the Commission’s legal service, are of the opinion that these articles need to be included in order to allow a legal basis under Article 118 [of the Treaty on the Functioning of the EU ("TFEU")]. Although I have asked for a clarification on why this would be the case, they have not been able to provide me an answer until now. And they still haven't. I am still waiting for it. I find it remarkable and deeply unsatisfactory. This idea is also unanimously rejected by all the judges, the lawyers and others that I have mentioned, who argue that it is perfectly possible to adopt a Regulation under Article 118 without these articles. Perfectly possible.  These are some of Europe’s foremost experts in the field and I think we have to consider their arguments very carefully.”

After Ms. Wikström's clear and logical reasoning supporting the removal of Articles 6 to 8, Mr. Bernard Rapkay, a self-described “legal layman” and the Legal Affairs Committee Rapporteur for the unitary patent protection portion of the package, replied as follows (please not this is a transcription of the translation provided on the Parliament's website, so there may be errors - alert the Kat in the usual way):

Mr. Bernard Rapkay

“Experts seem to be unanimous. But here, allow me to assess that in a political way. I could probably find a unanimous agreement of experts of a different view. This impression that experts are all singing from the same hymn sheet and that they want this, I think I have to say that's not an impression I’ve gained. I’ve talked to experts -- I am not suggesting that they are saying the complete opposite -- but those I have asked have said "No, it does not make any  sense to get rid of [Articles 6 to 8]."  There are many who believe that they want this in the Regulation… 

It is the unanimous view of some experts. There are always interests at play. I have received letters from the German Association of Translators saying “Well what you are doing is terrible. This question of three languages.  No, no -we need all languages”. One can understand where they are coming from.  I mean, what we are not doing is guaranteeing the future of German translators. Everyone has got their interests. Now, I have a vague idea of what interests are at play. I know what one interest group is about and what the other interest group is about and at the end of the day we have got to arbitrate a decision... I think we should not tinker with the structure too much. 

You know I am something of a legal layman – I am happy to listen to legal experts, but the point is that there are all sorts of differing legal viewpoints but at the end of the day our job is to take a political decision.” 

The AmeriKat is deeply unimpressed by this response and the brushing off of the legitimate and reasoned concerns of users, judges, attorneys and an entire industry who will ultimately be subjected to the consequences of these proposals. She also finds it ludicrous that Mr. Kapkay would classify the users, judges, lawyers and participants of the proposed system as a collective as an “interest group” in the sense he seems to intend it.  There also appears to be some degree of clinging on to this “package deal” of three proposals come what may and to the inclusion of Articles 6-8 of the Regulation because of the ghostly spectre of Article 118 TFEU. Who are these “experts” who insist that Articles 6 to 8 should be included because of Article 118 TFEU?

Dr. Pagenberg had this to say to the AmeriKat:

Dr. Pagenberg

“It is a shame that after so much effort for quality and user satisfaction over four years and with the contributions of the highest and most experienced patent judges, the Commission and the Parliament together with a majority of Member States, really dare to adopt a patent system - a system where its most important rules are being heavily opposed by the entire industry, where a number of key features have not even been discussed so far (procedural rules, litigation cost, procedure of appointment of judges etc.), and other urgent amendments of the draft Court Agreement have not been accepted (extending transitional period, allowing parallel national litigation at least for SMEs etc.). 

I confirm what your comment assumed and what EPLAW already said in different words in our Resolution: the package as a whole is now in essential aspects worse than the system it is meant to improve and that the promises by the Commission to reduce costs, reduce uncertainty and improve predictability, to improve efficiency, to establish clear procedural rules and to select judges for their competence have been entirely disregarded by the Polish Presidency which exercised an enormous time pressure only to proclaim "success" at the end of its presidency. It remains to be seen whether the year 2003 is not repeated here when the "Common Political Approach" negotiated by politicians was finally rejected as unacceptable by industry." 

The AmeriKat encourages all members of our very large "interest group" (a.k.a patent litigators, attorneys, users, academics, judges, etc) to keep up the pressure on and conversations with their national governments and MEPs.  Its not too late to change this for the better and to work to achieve the original aim of creating a user-friendly and efficient unitary patent system.

UPDATE:  The AmeriKat tuned into this morning's debate, but after 5 minutes on SMEs and business competitiveness (although at the time the video was marked on the website as being about the patent proposals), the cameras were switched off.  "Why should European policy debates be anything other than public?", demands the AmeriKat.  She now understands from the Council's website that the Council's Agenda has been updated to delete the legislative policy debates on the creation of unitary patent protection  and translation arrangements that were scheduled this morning.  The Council's website seems to indicate there will be a public debate on unitary patent protection on the translation requirements at 4:00 CET (here), after the 3:30 CET press conference (here).  What the removal of these items from the Agenda really means is yet to be entirely clear to the AmeriKat.

In the meantime, readers interested in contacting the MEPs can, courtesy of Vicki Salmon, click here for their details.