EU Unified Patent Court – EU Parliament / JURI Re-Opens Debate On Role Of Patent Attorneys

Mr Klaus-Heiner Lehne MdEP, Chair of JURI / European Parliament

It has just now come to my attention that on September 23, 2011, the Committee on Legal Affairs of the European Parliament has published a Draft Report on a jurisdictional system for patent disputes (2011/2176(INI)) (Rapporteur: Klaus-Heiner Lehne). The document comprises a text of a motion for a European Parliament resolution on a jurisdictional system for patent disputes (2011/2176(INI)) generally acknowledging that the establishment of a coherent patent litigation system in the Member States taking part in the enhanced cooperation should be accomplished by an international agreement between these Member States  creating a Unified Patent Court. However, there is an interesting twist:

In Germany, patent attorneys do enjoy the right to represent their clients in nullity proceedings even up to the German Supreme Court (Bundesgerichtshof BGH). In infringement matters, parties must be represented by an attorney-at-law but the patent attorney has a legal standing of his or her own by certain statutory provisions enshrined in the German Act on Patent Attorneys (Patentanwaltsordnung) describing the role of a patent attorney in litigation proceedings.

However, in other EU countries, patent attorneys don’t have these rights in nullity and litigation proceedings, and from the beginning on it was a quite controversial issue how to deal with the professional admission of patent attorneys concerning representation in court proceedings on a European level. Of course, lobbyist groups of attorneys-at-law practising IP law before courts throughout Europe ever showed a tendency to reduce the role of patent attorneys as much as possible, arguing that only a lawyer has the broad expertise in law matters required for such kind of court proceedings. From their perspective, unfortunately patent attorneys with all their knowledge on technology practically can’t be eliminated in total from patent related court proceedings but there was a tendency to propose reducing their role to a right to speak before the court. Up to now, in the negotiations on EU Council level, a compromise has been reached as follows:

Article 28
Representation

(1) Parties shall be represented by lawyers authorized to practise before a court of a Contracting Member State.
(2) Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.
(2a) Representatives of the parties may be assisted by patent attorneys who shall be allowed to speak at hearings of the Court in accordance with the Rules or Procedure.
(3) The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before the Court shall be kept by the Registrar.
(4) Representatives of the parties shall enjoy the rights and immunities necessary to the independent exercise of their duties, under the conditions laid down in the Rules of Procedure.
(5) Representatives of the parties shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know.

A crucial question will, of course, be what is to be understood by appropriate qualifications such as a European Patent Litigation Certificate. I am not aware of any Document explaining this further.

Now, the Committee on Legal Affairs of the European Parliament – chaired by Mr Lehne, who is, by the way, an attorney-at-law and partner of Taylor Wessing – obviously tries to bring in the political weight of the Parliament to overturn this compromise by considering that:

[...]
(v) the parties should be represented only by lawyers authorised to practise before a court of a Contracting Member State; the  representatives of the parties might be assisted by patent attorneys who should be allowed to speak at hearings before the Court; [...]

The reasons given by the Report are as follows:

It is of utmost importance that parties are represented by lawyers with the necessary experience in both patent and procedural law. Patent attorneys not authorised to practice before a court of a Member State can play an important supportive role and should therefore be allowed to speak before the Court.

Skilled patent attorneys, as shown in German practice for decades, are well apt to do their work even in infringement and nullity matters before the Courts.

On October 26, 2011, the Polish EU Presidency has published Document 16023/11 titled Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text. This Document represents the most recent publihed draft as far as I am aware.

(Photo: (C) 2007 European Parliament)