Patent Attorneys Beware of Lobbying: Fight for your Right to (Represent) Parties

Are European Patent Attorneys prepared to fight for their right to represent parties before the Unified Patent Court in both validity and litigation cases?

As reported earlier on this blog, the debate on the role of Patent Attorneys before the future Unified Patent Court has been reopened by the JURI Committee of the European Parliament, which suggested in a  “Draft Report on a jurisdictional system for patent disputes” (2011/2176 (INI)) dated 9 September 2011 that

“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”,

which, if ever put into action, would fall back behind the current situation in major European patent jurisdictions, such as UK or Germany, where patent attorneys are entitled to represent parties at least in validity actions.

As opposed to the JURI suggestion, current Article 28 (Representation) of the “Revised Presidency Text” of the Draft Agreement on a Unified Patent Court and draft Statute (Doc. 16023/11) dated 26 October 2011 rules that besides national lawyers

(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.

LOBBYING …

One may ask why JURI tries to exclude European Patent Attorneys from representation before the Unified Patent Court. I don’t have an answer yet, but it’s a matter of fact that at least 15 out of 25 members of the JURI Committee are lawyers (e.g. rapporteur Klaus-Peter Lehne is a partner of TaylorWessing, having one of the largest patent law departments in Europe), while none of the members is a patent attorney or – at least according to the biographies available on the website of the European Parliament – has any significant experience or deeper insight in patents, patent law, or the patent system.

Since JURI does not provide any further arguments apart from that “it is of utmost importance that parties are represented by lawyers”, it may not be too far fetched to consider JURI’s demand as plain lobbyism or, at least, resulting from a significant lack of knowledge regarding the competences, qualifications, and day-to-day practice of European Patent Attorneys.

In fact, as opposed to many other fields of law, intellectual property and especially patents are a very lucrative and even growing legal market for lawyers, so that there is certainly quite some lobbying going on in this question, which is considered crucial for the business model of patent lawyers.

For example, the “patent attorneys may assist lawyers” wording in JURI’s Draft Report looks as if it was just copied from a position paper of the vocal lawyer’s lobby group CCBE (see also the “concerns” of CCBE’s secretary-general Jonathan Goldsmith and the critical response of Tibor Gold, editor of the monthly Journal at The Chartered Institute of Patent Attorneys).

… AND FACTS

In order to bring light in the darkness of such “self-serving fears of competition from suitably-qualified patent attorneys in flagrant disregard of clients’ preferences” (as Tibor Gold put it), we better listen those who understand that patents are legal documents providing technical teachings, such as (i.) system users, (ii.) experienced practitioners and (iii.) independent researchers:

I.   The IP Federation represents illustrious IP intensive companies such as BP, British Telecom, ExxonMobil, Ford, Fujitsu, General Electric, GlaxoSmithKline, Hewlett-Packard, IBM, Microsoft, Nokia, Pfizer, Philips, Procter & Gamble, Shell, Unilever, Xerox and others.

In its Policy Paper PP05/11 of 22 June 2011, the IP Foundation clearly expresses its support of the current text of Article 28 of the Draft Agreement:

[...] It therefore seems to us that any system which denied direct representation to European Patent Attorneys (EPAs), the largest body of technically qualified legal persons in Europe with a deep understanding of both patent law and science, would be both inconsistent and sub-optimal. This is the more so given that, in the field of patent law, EPAs and specialist patent lawyers have overlapping and in some instances identical skills. Furthermore, they operate within a professional framework of conduct and disciplinary proceedings overseen by a recognised professional body (the European Patent Institute) which for all practical purposes is identical in its effect and severity to those bearing upon their lawyer counterparts.

At least three reasons have been identified by the IP Foundation for its strong support of the current version of Article 28:

1. Due to the positive development seen by the system users in the UK, where Registered Patent Attorneys have litigation rights before the Patents County Court in London and, provided they have an additional litigator’s certificate, before the High Court, the IP Foundation thinks that the successful UK model can be safely replicated in the new court system. Further, unnecessary duplication of representatives and advisers – and thus costs – can be prevented.
2. The experience with European Patent Attorneys being entitled to represent clients in opposition and appeal proceedings before the EPO – often as part of complex multi-party disputes where the validity of extremely valuable business-critical rights is in dispute – has been overwhelmingly positive. This success is based in part on the requirement that European Patent Attorneys pass an examination in opposition practice which will likely form the procedural backbone of the new Court. It would indeed be a bizarre outcome if European Patent Attorneys could act as representative in inter partes opposition proceedings before the EPO but not in essentially identical validity proceedings before the new Court.
3. In their day-to-day practice European Patent Attorneys usually render advice on both infringement and validity issues, while Registered Patent Attorneys in the UK are specifically examined on both these matters as part of their qualification training. The skills of those attorneys will in almost all cases already be far superior to those of the average generalist lawyer who rarely has actual experience of legal or administrative proceedings related to patents yet who will nonetheless receive an automatic right of audience.

II.   Further, the European Patent Institute (epi), the professional body of registered European Patent Attorneys, stressed in a positional paper dated 23 June 2010 that European Patent Attorneys

1. have the required technical qualifications;
2. are highly qualified and experienced in European patent matters;
3. have to provide lawyers with the necessary arguments on both validity and infringement in litigation;
4. already represent clients before a European Court, namely the Boards of Appeal of the EPO as an autonomous European authority;
5. are regulated by a code of professional conduct (cf. Art. 11 of the “Regulation on the establishment of epi” , the “Regulation on discipline for professional representatives” and the “Additional Rules of procedure of the Disciplinary Committee“);
6. will obtain organised training in the new procedures (other than lawyers);
7. will help to obtain cost benefits (cf. Final Report “Economic Cost-Benefit Analysis of a Unified and Integrated European Patent Litigation System” by the Institute for Innovation Research of the Ludwig-Maximilians-Universität, 26 February 2009); and
8. provide effective litigation,

while the cadre of lawyers will include many who have no knowledge of technology, patent law (e.g. the EPC) or of the procedural law of the Unified Patent Court, especially if those lawyers come from a state with little or no tradition in the patent field and be subject to considerably varying disciplinary procedures the European Union.

III.   The renowned Centre d’Études Intern. de la Propriété Intellectuelle of the University of Strasbourg also supports representation rights of European Patent Attorneys before the Unified Patent Court, since “before these courts infringement and validity issues will be taken together, in order to expedite the proceedings”. In a presentation and a report on the conference “Towards a European Patent Court“, held in April 1010, Walter Holzer, course coordinator at CEIPI, held that

• European Patent Attorneys up to now form the only harmonised pan-European fully academic profession organised according to international law, with a pan-European training and qualification;

• special attributes and thus the common competence of patent attorneys is their scientific/technical background as well as legal training, which enables them to encompass a technical and legal mode of thinking.

CONCLUSION:

As shown above, there are many reasonable arguments why European Patent Attorneys holding a Patent Litigation Certificate should be entitled to directly represent parties before the new Unified Patent Court. It would be counterproductive for efficiency of the proceedings and quality of the decisions if lawyers having neither knowledge of technology nor experience with patent law and patent suits (and which are not required to have any additional qualifications) may represent clients before the Unified Patent Court while experienced European Patent Attorneys holding a supplementary Patent Litigation Certificate may not be entitled to do so. The system users, as organised in the IP Federation, would consider such a situaton “inconsistent and sub-optimal“.

To prevent such a situation, which would be adverse for the parties and the acceptance of Court, patent attorney organisations such as epi, FICPI , AIPPI, or national patent bars such as the German Patentanwaltskammer or the UK Chartered Institute of Patent Attorneys should increase their efforts to make sure that the current text of Article 28 remains as it is.

In fact, the only way to improve Article 28 for the benefit of parties and quality standards would be to amend Article 28 (1) to e.g. read: “Parties shall be represented by lawyers authorized to practise before a court of a Contracting State and who either meet the required experience in patent litigation or who have appropriate qualifications such as a European Patent Litigation Certificate“, in order to ensure that inexperienced lawyers will have to obtain an extra qualification to practise before the Unified Patent Court.