Latest Europatent rumour: is it "bye-bye, infringement"?

Merpel's spare set of ears is
kept permanently tuned on
European patent matters ...

Since Kats and humans have collectively come quite close to exhausting not only the subject but also the blog-reading public on the subject of Europe's unitary patent and unified patent litigation prospects, Merpel sees no reason why she shouldn't join in the fun.  The events of the past year have reassured her that knowing nothing at all about how the patent system operates in legal, administrative and economic terms is no bar to pronouncing on the subject, so Merpel will have her say too. And this is what she says:

The rumours can no longer be denied: there is going to be a further, fresh proposal for a compromise text floating around which has been crafted so as to replace the original and much-criticised Articles 6-8 of the Unitary Patent Protection Regulation.   

All around the Continent, from Cadiz to Corinth, from Sweden to Sicily, speculation has been rife as to what the new text might contain.  Is it true that a whole new complex verbal formula has been forged which will allow Europe's finest legislators, policy makers and negotiators to avoid having to use the word “infringement”? And is it true that the rules of engagement of the Unified Patent Court (UPC) will be replete with references to the application of national law? This is what this Kat's ears hear.

If the rumours are true it could mean that, for European Union-based holders of patents, the place of domicile determines applicable national law while for non-EU patentees, in contrast, German national law would apply. If the UPC found itself obliged to apply different national laws in the case of unitary patents -- even though that application would be with uniform effect -- it appears that litigation might produce quite different results, depending on the domicile of the patentee. This in turn suggest that the product of the past few years' mammoth effort to produce unitary effect for patents would actually be, er, divergence.

The rumoured final texts thus seems to introduce a new level of complexity and fragmentation which those of us who dreamed of a single patent having single effect across a single market had never previously envisaged. Indeed, the potential for divergent jurisprudence may even be greater than would have been the case if the interference by the Court of Justice of the European Union (CJEU) -- which the compromise language was seeking to remedy -- had been allowed to occur in the first place.

But what about that curious new wording which seeks to avoid using the word “infringement”? Might it mean that UK national law would apply to both infringement and validity of a unitary patent owned by a British-based company such as BT or GSK, Dutch law for Philips’ unitary patents, Swedish law for Ericsson’s, Finnish law for Nokia’s and -- for all non-EU companies -- German national law?.

Now, says Merpel, drawing herself up to her full height and putting on her ever-so-teacher-y voice, let us imagine the following scenarios:

* Where a UK company is the defendant: Britco is sued for infringement in Greece by a US patentee who is the proud owner of an English-language unitary patent. The language of the proceedings would be Greek. The text of the patent is in English. The applicable national law is German (as applied by the Greek national division).

* Where a UK company is the plaintiff: this time Britco sues for infringement in Greece on an English-language unitary patent. The language of proceedings would be Greek. The text of the patent is in English. The applicable national law is English.

The final element mentioned in each of these hypothetical situations -- the applicable national law -- provides the new twist in each case and the potential for divergent jurisprudence in the UPC seems enormous. So why is it that hardly anyone seems to be aware of this potential new complication? Why has no-one appreciated the risk of fragmentation which prima facie seems monstrous? At this point Merpel can almost hear the plaintive mewing of a thousand patent attorneys: "come back, CJEU, all is forgiven!"

[The questions posed in the previous paragraph are rhetorical. The reason no-one worries about this is that the texts are deadly secret, like all the best Soviet legislation in the days of Stalin, and Merpel had to kiss a few Eurocrats to get sight of them. O tempora, o mores].

UK practitioners and patent owners can expect to receive no sympathy from the UK government because, adding rumour to rumour, there is a suspicion the monstrous language which has replaced the objectionable earlier drafts with something even worse was actually coined in that Scepter'd Isle, forged in that formidable Verbal Smithy in which Shakespeare and Milton, Keats and Shelley, Wallace and Gromit hammered out their mortal prose. And, says rumour, the UK government even approves of it!

So what can be done? Maybe not much.  But we can at least draw attention to this nonsense and ask whether it is truly better to secure a patched-up nonsense result such as this than to have no result at all.