"Not fit for purpose": Parliamentarians excoriate British patent negotiation strategy

The latest news from the United Kingdom may come too late to affect the outcome of the European Summit on the Fate of the the Unitary Patent, which opened today, but it's at least of interest to those people who think that Parliamentary scrutiny, checks, balances and other organs of legislative decision-making in a democratic nation actually work.

So what has happened? The Commons Business Skills and Innovation Committee yesterday released a report entitled “The Hargreaves Review of Intellectual Property: Where next?”. This report contains a passage on the long-running European patent reform negotiations which is critical of the Government approach. This summary might give readers who are of a delicate disposition some cause for alarm:

"147. In some circumstances we might have concluded that the apparent absence of negotiating "red lines" could be attributed to a desire not to give away the Government's negotiating position, but combined with the overall vagueness about direction and the lack of command of detail, the impression was instead of a lack of firm direction [or indeed of any direction: see earlier Katposts here and here, for example]. The depth and range of concerns that have been expressed, from such a wide constituency of interested parties, leads us to conclude that the Government should resist the temptation toward the "need a win" argument in favour of proceeding with the UPC [note for first-timers: "Unified Patent Court"]. This is especially so as there are options that would not involve such an irrevocable commitment to an untested idea. For instance, one possible compromise would be to set up the new court system with non-exclusive jurisdiction and let businesses become convinced of its merits over time [references to the need for business confidence are welcome in the debate, though sadly overdue]. This would also allow the court to compete with the newly reinvigorated UK Patents Country Court [pedantic point: there is no such court. There is a Patents County Court for England and Wales, but not for the rest of the UK].

148. It is clear to us and the European Scrutiny Committee that the Government's current negotiation strategy for a Unified Patents Court is not fit for purpose. As a matter of urgency the Government needs to take a firmer stand for UK interests in the UPC negotiations than was manifested in the recent evidence session held by the European Scrutiny Committee. In particular, it needs to set out clearly defined options for outcomes acceptable to the UK and a robust strategy on how to translate those options to an acceptable overall solution. Such a strategy has to clearly state the Government's position on avoiding European Court of Justice jurisdiction [this the one piece of advice Chief Judge Randall R. Rader gave the British last night at the Sir Hugh Laddie Lecture], avoiding the risk of remote and costly litigation for UK [and indeed non-UK?] business, and neutralising or mitigating the effects of any bifurcation regime. Furthermore, that strategy should include a cogent argument for locating the central court in London and not one that relies upon hope and aspiration. Anything less runs the risk of undermining the competitiveness of British industry".

The IPKat wishes that it had been possible for the Committee to say this at least a year ago, and that it was free-standin and not simply a small message floating within a pronouncement on the mainly copyright-oriented Hargreaves Review. He agrees that the location of the central court, and indeed of any European institution, should be based on cogent argument, even if it means opting between a number of competing cogent arguments, rather than on the basis of political horse-trading.

Merpel agrees and reminds readers that the location of major European institutions is a matter of shame and embarrassment.  The European Union boasts a pantomime horse of a Parliament, with its snout in Strasbourg, its liver in Luxembourg and its backside in Brussels.