Warsaw, December 22, 2011: The Day Of Initialling The EU Unified Patent Court

European Council - Brussels, 23 October 2011 - Family photo (Next reunion: December 09)

Document 17539/11 authored by the Polish EU Presidency, titled Draft Agreement on the creation of a Unified Patent Court – Guidance for future work and directed to Permanent Representatives Committee ( COREPER Part 1) unveils under item 11 thereof:

The Presidency announced its intention to organise the initialling ceremony whereby the text of the Agreement could be finalised in Warsaw on 22 December 2011. The Presidency considers that the Member States should be able to arrive at a political agreement on the text of the Agreement at the meeting of the Competitiveness Council on 5 December 2011 on the basis of this set of compromise proposals, despite the fact that some issues of political importance could be left to be agreed at a later stage, but before the signature of the Agreement.

Well this appears to be quite big an issue. Why? Well, … in Document 16741/11 titled Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text we see current wording of Article 5 (1a) printed as follows:

(1a) The central division shall have its seat in [...]. The contracting Member State hosting the central division shall provide the necessary facilities for that purpose.

And, in a corresponding way, current wording of Article 7 (4) reads:

(4) The Court of Appeal shall have its seat in [...].

It is to be understood that the the initialling ceremony scheduled to happen in Warsaw on December 22 would be pointless if there isn’t a finalsed text of the entire Agreement ready for signing .. without those ellipsis in Articles 5 (1a) and 7 (4).

With other words: A political decision as to how to locate the seat of central portions of the UPC system is due to well ahead of the planned ceremony in Warsaw. For more details on the timetable, see also Volker Metzler’s post on visaepatentes.com.

Maybe that a political decision on the location of the seats of the central division and of the Court  of Appeal will be reached already on the meeting of the Competitiveness Council on 5 December 2011. However, I do not have any clue so far as to whether or not such progress is likely. But there is another point: On December 09, 2011, in Brussels there the final Meeting under Polish Presidency of Heads of State or Government of the Member States of the European Union (European Council) under the chairmanship of the President of the European Council will take place.  The European Council consists of the Heads of State or Government of the Member States, together with its President and the President of the Commission. Except where the Treaties provide otherwise, decisions of the European Council are taken by consensus. Unless the Euro crisis absorbs all attention of the  attendees at this meeting this would be a proper occasion to take the final decision on the seat of central portions of the UPC.

What will the final decision say?

In this blog I have given some speculation before pointing east towards Warsaw. However, there are other voices, too: Jeremy Philips of IPKat fame recently wrote:

[...] The IPKat has learned from a fly on the wall that, at a meeting of the UK Intellectual Property Office last Monday, it was reported that the only country which has up till now made a bid for the Central Division — which will most likely also host the appeal court — is Germany.

In Germany, serveral cities have been discussed in the press, including Munich (here, there and there), Hamburg, Mannheim, and Düsseldorf.

Well, I’m not sure if this will go through smoothly. Some anonymous comment on the IPKat Blog reads:

This is German domination going mad at a time when they are milking their position in Europe and as the dominant member of the Eurozone, yet are failing to act to prevent a now seemingly unstoppable dive back into recession. Germany has done very well out of the EU and Euro and are now protecting their hoard. Even France is in Danger of being taken out by the bond markets due to the Merkel effect. I am in no way anti-German, but I am opposed to their actions and recent inactions.

The unitary court will be dealing with international litigants so this is not simply an EU issue. There are already major bodies in France, Belgium and Germany including the EPO so a bit of diversication by placing the court somewhere else is a good idea. London is an international legal centre already with good transport facilities etc etc and very little needs to be done to place the court there. In contrast, most cities of many EU states are not geared up for taking on such an institution so increased costs would be incurred for purely political objectives, which is nonsensical, just like the dual-base of the European Parliament (though nothing could be so ridiculous).

I’m not personally a fan of London dominating everything in the UK either but on this occasion the argument is a good one. Not to mention the availability of the Olympic stadium as a venue for those multi-litigant cases.

Perhaps readers of this Blog seated outside of Germany might be in a position to assess all this better than me who accidentally is not only a German citizen but also located in Munich where we do have two Patent Offices and the Federal Patent Court as well. And London? Well, that would be fun … having Oral Proceedings on Friday and a touristic weekend in old England thereafter …

OK, forget about that tourist excursions issue … of course it was merely a joke. Or not? On the IPKat Blog we also read:

Like Merpel, the AmeriKat’s limited time for idle speculation has also been focused on its whereabouts. Merpel and the IPKat, being consummate Europeans, do try to be diplomatic and discreet in what they say. The AmeriKat however is under no such constraints. As an American who is proud of her constitutional heritage of Freedom of Speech, and as a happy outsider who has settled comfortably into the United States of Europe, she is more inclined to throw caution to the wind and tell it the way she sees it. And what does she say? Why, there is only one obvious choice, her very own adopted home — London!

Reading on, you can find a number of arguments supporting a London bid, inter alia, as follows:

• Already the patent litigant’s venue of choice
• It has the people
• It has the venue
• It has the location

Not saying that it comes as a surprise but nevertheless I think it is  worth mentioning that the UK IP Federation has published a detailed paper setting out a number of arguments in favour of London.

Well, we shall wait and see …

[UPDATE 2011-11-28 1815h] See also this report on the Guardian: London backed by UK lawyers as home of new European patents court – Chartered Institute of Patent Attorneys urges David Cameron to bid for court to be based in UK rather than Germany:

[...] Germany has proposed that Munich, where the EU’s patent office is already located, should become home to the court that will adjudicate in disputes over ownership of industrial designs and inventions.

The issue is in danger of becoming entangled in political horse-trading over the euro when it comes up before the European Council in Brussels next month, British lawyers fear.

Tim Roberts, president of Cipa, has urged David Cameron to put in a formal bid for the court to be based in London.

“Unlike other European intellectual property centres, the UK does not house any European intellectual property institutions,” Roberts wrote. [...]

(Photo: (C) 2011 by European Council)