Yesterday I wrote a post reporting on the publication of EU Council Document 15539/11 conveying another version of the Draft agreement on a Unified Patent Court and draft Statute. Apparently there seems to be some political desire to get this thing done – together with Draft Regulations implementing enhanced cooperation in the area of unitary patent protection (Document 11328/11) – by finalising the entire package by end of this year.
To me it is quite a bit open as to whether or not this ambitious target will be met. We are amidst a grave stress test of the Euro framework, perhaps even of the EU itself. And, members of the political elites in all of the EU Member States are extremely busy to pretend as if they were aware of any viable solution advising how to exit this situation which perhaps might be reported in future textbooks of history as the worst crisis of the European Union ever. Will there be sufficient time and political will power to sort out problems in the field of patent law? I remember well the months of the French EU Presidency from July to December 2008. Up to September 2008 there had been strong hopes that French President Mr Sarkozy to take the bull at its horns and force a political compromise in the nasty languages issue concerning the original proposal for a EU Community Patent covering all of the EU Member States, including Italy and Spain. But on September 15, 2008, Lehman Brothers had to file for bankruptcy, and the world was no longer the same as it had used to be. The French Government had to shift their priorities, and Mr Sarkozy did not make it to push a compromise towards the EU Community Patent during his time at the helm of EU Presidency.
If the approach now pending – ‘enhanced co-operation’ – succeeds, what will be the practical consequences of its implementation?
Well, one of the most important questions isn’t answered so far. Where the seat of the institution will be is still open to be noted down; Article 5 shows ominous ellipsis:
The Court of First Instance
(1) The Court of First Instance shall comprise a central division as well as local and regional divisions.
(1a) The central division shall have its seat in […].
Also Article 7 is silent about the seat of the Court of Appeal:
The Court of Appeal
(4) The Court of Appeal shall have its seat in […].
Of course, the question of the seat is to be decided on top level, probably by the heads of the Governments of the EU Member States (minus Italy and Spain). When, at the beginning of the 1990s, a consensus on the main provisions of the CTM Regulation was emerging, the question of where the Office for Harmonisation in the Internal Market (OHIM) should be seated needed to get some answer. London was discussed, but – as far as I know – Alicante won because of there was some sort of rough consensus on the respective EU summit that Spain, having shaken off its dictatorial past under the Franco Regime and having joined the EU Club, should be awarded by being chosen as seat of some major EU institution. It was simply Spain’s turn to receive something from the lottery of newly founded EU institutions.
And, if at the end of this year, EU Heads of Government will put together their heads in order to decide on the location of the seat of the Central Division plus Appeal Court of the EU Unitary Patent Court System?
Arguing technically, Munich surely would be the best place in the EU for such kind of institution. Here there are experienced judges plus technically qualified judges within the proximity of the European Patent Office and the German Federal Patent Court (Bundespatentgericht). But, of course, I see that it is a quite weak – if not outright impossible – position for any patent attorney sitting in Munich to argue along these lines.
Let us have a sober view on the political realities. If the same criteria apply for determining the seat of core institutions of the EU Unified Patent Court System as they once did for finding a seat for OHIM, we have to look for ambitious EU Member States belonging to the Club not since too long and not having rewarded by a plethora of EU institutions. Well, if thinking so, one country comes into my mind – Poland.
There is another twist with this matter: As many of the readers might know, the Boards of Appeal of the European Patent Office are free in their decisions from any directive or guidance from the President of the Office. However, the Boards of Appeal still are organisatorically integrated into the Office. There is an initiative still pending to find a political solution providing organisatorical autonomy of the Boards of Appeal:
Creating a third organ of the European Patent Organisation
The envisaged revision of the EPC aims at establishing the Boards of Appeal, together with their registries and the other support services in the present DG 3, as the third organ of the European Patent Organisation alongside the Administrative Council and the Office. This new organ of the Organisation would be designated the “European Court of Patent Appeals” and fulfil the judicial functions provided for in the EPC. The Organisation would then have the three-way separation of powers typical of a state bound by the rule of law, into legislature, executive and judiciary, the latter being the new judicial body.
Rumours say that this plan was effectively put on ice indefinitely because of Warsaw in Poland had been mooted as seat for such third pillar of the European Patent Organisation. And, the saga further tells, behind the scenes there was an uproar of many of the current Members of the Boards of Appeal, refusing to sell their homes nicely located in the area between the Alps and the City of Munich, unwilling to look for new settlement in Warsaw. BTW, on a national German level, the same game had been played in the Federal Supreme Court (Bundesgerichtshof) seated in Karlsruhe, former West Germany. The former German Reichsgericht was located in Leipzig in East Germany. After the German reunification and a lavish refurbishment of the building of the former Rechsgericht in Leipzig, plans were made to locate some of the senates of the Karksruhe court to Leipzig. But the judges strongly opposed the call to move eastwards.
So, one of the political questions will be if the EU dares to start another attempt giving some EU Member State of East Europe an inportant institution in the field of Intellectual Property law.
If the core institutions of the EU Unified Patent Court system are not located in Germany, there will be s significant loss of business in particular for the Federal Patent Court (Bundespatentgericht) in Munich. Article 15 of the current draft says:
Competence of the Court
(1) The Court shall have exclusive competence in respect of:
(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;
(a1) actions for declarations of non-infringement;
(b) actions for provisional and protective measures and injunctions;
(c) actions for revocation of patents;
(c1) counterclaims for revocation of patents;
(d) actions for damages or compensation derived from the provisional protection conferred by a published patent application;
(e) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention;
(f) actions on compensation for licences on the basis of Article 11 of Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection; and
(g) actions concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 12 of Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection.
(2) The national courts of the Contracting Member States shall remain competent for actions related to European patents and European patent with unitary effect which do not come within the exclusive competence of the Court.
It should be duly noted that in accordance with Article 2, no. 7, “Patent” means a European patent and a European patent with unitary effect. Hence, there is not much left over which can be dealt with under Article 15, Sec. 2, by traditional national courts. In particular, nullity proceedings concerning non-unitary European patents (nowadays dealt with by Bundespatentgericht) will go to the new EU Unitary Patent Court system.
Axel H. Horns
German & European Patent, Trade Mark & Design Attorney
The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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