European Patent Lawyers Consider Proposed Unified Patent Court an “Unwanted Present for Industry”

As reported earlier, there is a strong desire of (parts of) industry [1, 2] and patent professionals [1, 2, 3], politically supported by JURI member Wikström and UK IP Minister Baroness Wilcox, to remove Articles 6 to 8 dealing with substantive patent law on patent infringement from the proposed Regulation. The fears of those groups are that otherwise substantive patent law would become part of EU legal order causing costs, delays, legal uncertainty. A related resolution of the European Patent Lawyers Association EPLAW expressed such concerns recently in a rather pointed way:

If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.

If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.

And if somebody intended to lay a solid ground for failure of this – at some time very promising – project, then he will probably succeed.

Now there is evidencs (see e.g. this tweet) suggesting that Ms Wikstrom has lost the battle over Articles 6 to 8, so that the provisions dealing with substantive patent law on patent infringement will remain part of the Unitary Patent.

Before this background, an EPLAW press release (published here) summarises the main drawbacks from their perspective:

First of all, the question of what constitutes infringement is to be made will not be decided by the new Unified Patent Court which be obliged to refer many questions of interpretation to the European Court of Justice. In other words: the new Unified Patent Court cannot decide on its own the subject matter it is created for – a rather alarming result given the uncertainty, delay and cost that this will create for future litigants, since judges of the European Court Justice have no patent experience. [...]

Secondly, for obvious reasons, any court can only be as good as its’ judges. Despite this simple insight, it is currently absolutely unclear how it can be ensured that the Unified Patent Court with its numerous local and regional divisions could ensure that all cases are handled by experienced judges. To the contrary, it seems rather likely that in the proposed system of national proportionality ["quotas"] will out-weigh qualification.

Thirdly, after a short transitional period, patent owners will be forced to decide upfront whether they would enforce their existing European patents through the new Unified Patent Court or – as now – through the national courts. Such decision will have to be made without knowledge of whether the new system will be more efficient and less costly than the existing system of national courts having regard to each individual case. However, if this new system is created to help industry and offers at least the same quality, why is it not offered as a choice in addition to the existing system, such that each company can pick the best option for each case? In other words: what is the point, for example, of expensively litigat-ing small, local acts of infringement before a large European court? By members of Parliament, by the Commission and by the Council small and medium sized enterprises (so-called SMEs) are constantly mentioned as the main target groups which should benefit of the new system; so far there is very little in the texts which could be attractive for them.

Finally, and somewhat surprising for a system which is supposed to be designed to save costs: the costs of filing cases in the new system are unknown. So far, not even the court fees and the procedural rules are fixed and hence even these basic issues remain unresolved, although reduction of cost and efficien-cy have been advertised as the main attractions of the new system.

Thus concluding that “the deficiencies of the current proposal are so fundamental that the system is bound to fail“, that “industry cannot afford a failing system as the only means for the protection of their greatest assets”, and that “after 40 years of work it is surely worth taking a few more months to get it right and avoid disaster.

It remains to be seen whether or not the political forces in charge for this project can be impressed by such definite language. It at least appears doubtful in case of JURI Rapporteur Bernard Rapkay, who once commented on such expert opinions:

Experts seem to be unanimous. But here, allow me to assess that in a political way. I could probably find a unanimous agreement of experts of a different view. This impression that experts are all singing from the same hymn sheet and that they want this, I think I have to say that’s not an impression I’ve gained. I’ve talked to experts — I am not suggesting that they are saying the complete opposite — but those I have asked have said “No, it does not make any  sense to get rid of [Articles 6 to 8].”

It is the unanimous view of some experts. There are always interests at play. I have received letters from the German Association of Translators saying “Well what you are doing is terrible. This question of three languages.  No, no -we need all languages”. One can understand where they are coming from.  I mean, what we are not doing is guaranteeing the future of German translators. Everyone has got their interests. Now, I have a vague idea of what interests are at play. I know what one interest group is about and what the other interest group is about and at the end of the day we have got to arbitrate a decision… I think we should not tinker with the structure too much.