Wednesday, 1 June 2011

Non-paper on the non-patent court?

The non-paper: will it ever fly?
Last Friday the Council of the European Union published a document, Creating a Unified Patent Litigation System - Orientation debate, to which was attached Annex II, delightfully titled in capitals "SOLUTIONS FOR A UNIFIED PATENT LITIGATION SYSTEM – THE WAY FORWARD AFTER THE OPINION 1/09 OF THE CJEU: NON-PAPER OF THE COMMISSION SERVICES".

PatLit will be publishing a note on this development soon. In the meantime, rest assured that the various organs of the European Union will be straining every sinew to achieve a new Europe in which patents are protected and investment encouraged.  Reading the statements issued by the Commission, one is tempted to wonder why it was that, until now, anyone bothered to apply for anything as worthless as a patent in Europe, still less sue for infringement.


Anonymous said...

The EU Commission appears to be proposing something like: 'EPLA, but for EU Member States only - other states not to be allowed to play (although EPC patents to continue and fall under the exclusive jurisdiction of the new court)'.

Since the CJEU opinion only excludes participtation of non-member states with respect to future 'European patents with unitary effect' (if any), the obvious alternative route of proceeding towards creation of an international court based firmly on the already-existant European Patent system, in order to include all 40 EPC contracting states (& markets & jurisprudence), remains inescapably sensible, powerful and workable.

Steve Peers said...

That alternative route is neither sensible, nor powerful, nor workable - most importantly, because it is not legal.

The idea of a unitary EU patent is hardly as hypothetical and unlikely as it used to be, given that enhanced cooperation among 25 Member States has now been authorized, the Commission has proposed a new version of the two legislative measures needed to set this up, and these have been largely agreed in the Council already this week. See the following text:

Another Council meeting is scheduled for June 27th to agree a final deal on both texts (subject to the subsequent role of the European Parliament).

So as long as there is a real prospect of a unitary patent being created among most EU Member States in the forseeable future, it would hardly be sensible or workable to revive a litigation proposal which is confined to European patents only. Nor is it a powerful idea in political terms - given the currently strong support of a large majority of EU Member States for going ahead with the unitary patent idea as soon as possible - because reviving the EPLA idea would distract from the project of agreeing a common court with jurisdiction over both European and unitary patents, which is politically and practically linked to the unitary patent proposal and which most EU Member States (based on the public Council debate this week) want to discuss straight away, based on the Commission non-paper.

On the other hand, it would make sense to revive the EPLA - if that were legally possible - if the EU's unitary patent proposal collapses again for some reason - for instance, if the idea of a common court with jurisdiction over both European and unitary patents does not lead to an agreement, or if the agreement is not ratified, or if the Spanish and Italian challenges to the authorisation of enhanced cooperation as regards the unitary patent are successful.

Yet even in that scenario there are two serious legal problems with the EPLA proposal, as I set out in my comments on previous posts - a) that the EU would have to agree to waive its exclusive external competence over specific related areas such as civil jurisdiction; this is hardly likely as long as the EU is focussing on setting up the internal legislation to establish a unitary patent, given the distraction that the EPLA would create, but might be foreseeable if the EU project collapses again; and b) that although Opinion 1/2009 of the Court only refers to jurisdiction as regards EU unitary patent legislation, the logical implication of the judgment is that it is impossible to divest national courts of Member States of their usual powers in relation to the Court of Justice and to give those powers instead to an international court involving non-Member States (rather than a court created by Member States alone, which the Court of Justice specifically states is acceptable) in relation to ANY area of EU law, including areas such as free movement law which are linked to European patents. After all, why should the Court of Justice's concerns about divesting national courts of their usual jurisdiction be confined only to the specific planned legislation for a unitary patent? So the EPLA cannot work (legally) if it involves non-EU Member States.

However, an EPLA would work legally if it involves EU Member States alone (if the unitary patent project collapses); and even if the plans to set up a unitary patent remain on track it should be possible to have the planned common court of Member States exercising jurisdiction as regards European patents, perhaps among the first group of Member States to ratify the treaty concerned, before it exercises that jurisdiction as regards unitary patents. In either case this would require an amendment to the EU's civil jurisdiction rules - but the Commission has already raised the idea of amending them in order to facilitate the creation of this court, in its non-paper.

Anonymous said...

Your opinion is not wholly without merit, and appears to be based on a less sceptical view than mine as to whether the political & legal machinations of the EU is EVER likely to produce anything that actually happens in terms of creating a workable patent court (scepticism that may, unfortunately, even if justifiably, have turned to cynicism following 50 years of debate without any noticeable useful product thereof - other than production of yet other proposals and of yet other debates).

The apparent semi-puerile attitude (as reflected somewhat in your piece above) of the EU-focussed-legal-fraternity/lobby that 'either we are going to get to do this or else it won't happen' (i.e., 'we will actively stop anything else from happening') is very sad for Europe as a whole - as we continue to witness innovation and growth suffer and migrate away from our shores, while the legal and political desires of the elites continue to be debated without resultant action.

Who knows? Maybe the EU bodies CAN achieve progress towards actual action on a workable multi-jurisdictional patent court. I, for one, would rejoice, as I believe it would provide a much-needed boost for technological-innovation-based business in Europe.

However, it is my strong remaining apprehension that nothing of any operational relevance to business will happen for the foreseeable future and that the EU-legal-focussed-fraternity/lobby will, for self-serving, power-political reasons, choose to use their political capital, to their own cynical ends, to prevent anyone else from moving towards pragmatic, workable scenarios. The end effect of this will be that they will ultimately remain the 'ruling elite' of a much-diminished and impoverished Europe due to the legally-trained person's educationally-honed-focus on the distributive aspects of situations that can often blind them to the fact that the overall size of the pie continues to diminish over time, to everyone's detriment (including their own).

Steve Peers said...

I think I was describing the 'semi-puerile' attitude, rather than endorsing it. I don't have any objection in principle to the EPLA, just doubts about its legality. As I have probably said on another blog comment somewhere, I don't think the judgment in Opinion 1/09 is very convincing (neither is the claim for exclusive external competence over civil jurisdiction set out in Opinion 1/03), but it is a legal reality, and therefore a political reality.

There is a tendency in some pro-EPLA material of just wishing the EU factor would go away or pretending it isn't there, which is not realistic. I admit that the EU patent project may well come to grief again, but I think this will most likely be in a few years' time, if the patent court treaty is agreed but not ratified (cf the 1976 and 1989 treaties); so to argue at the moment that in effect it should be shelved in order to revive the EPLA is just spitting into the wind.

However, as I point out at the end, and in my comment on a later post, I think it is entirely possible to revive a form of the EPLA in the near future, as a 'piggyback' on the EU patent court project. It would be legally feasible to provide that the court can begin functioning as regards European patents only earlier than it begins functioning as regards EU unitary patents, at least in those Member States which opt for this approach and have ratified the court agreement first. (In fact it would also be feasible to provide for this as regards EU unitary patents, although perhaps applicants would be unwilling to apply for them until a critical mass of MS had ratified and applied the court treaty).

In order for this to happen, it is necessary both that the patent court treaty permit it (obviously), and also that the amendments to Regulation 44/2001 that the Commission non-paper says it would propose also permit it to happen. As I said in another comment, the EPLA advocates need to start lobbying Member States, the EP and the Commission.