Critical Position Paper of International IP Federation FICPI on Unitary Patent and Unified Patent Court

FICPI is one of the large international federations of IP attorneys. In its capacity as a professional representation especially of European Patent Attorneys and national Patent Attorneys in EPC/EU states in private practice, this “Position Paper on the Unitary Patent and the Unified Patent Court” has been prepared and submitted in support of profession’s and their client’s interests. The document carries the date of 3 December 2011 and has been submitted on 4 December (Sunday), i.e. one day before the decisive EU Council meeting on 5/6 Decmber (result see here) but, apparently, after the not less decisive meetings of the Legal Affairs Committee (JURI) of the EU Parliament in preparation of the Council meeting, so that the paper’s impact on the political process is probably limited.

The position paper does not appear to be available via the FICPI website yet, but has been referred to in this tweet on @FICPI, demanding to “‘Go Slowly’ on Unitary Patent and Unified Patent Court” (see related press release).

Critisising Statments: In the paper’s “General Statement” the political process is openly critisised an further consultations are recommended:

FICPI believes that the present projects have been prepared with excessive haste and suffer from a number of severe legal and practical deficiencies, partly because there has been inadequate consultation with the stakeholders of the patent system, which is essential to robust and effective law making.

FICPI therefore considers that it would be a mistake to sign and enforce the planned legislation documents in their current form.

FICPI therefore strongly urges the authorities in charge of enforcing this project to pause and organize a proper user-consultation process that would allow the major roadblocks identified by FICPI (and detailed below) and other organizations to be addressed. FICPI would be very willing to participate in such consultation process.

In the limited time available, FICPI has [...] identified severe legal and practical deficiencies in these proposals, which would be detrimental to the future system, and to the image of the IP system in general, if these concepts were enacted and enforced in their present status.

FICPI shares the impression of many other user groups that the present matter is being handled much too quickly, with important issues not thought through and not publicly debated (especially with the stakeholders of the system) as they should be. Problematic and therefore bad law will result. [...]

The draft regulations critisised by FICPI include

• the competence of the divisions,
• the fee structure,
• the language regime,
• the amendment procedure,
• the Rules of Procedure of the Court,
• the Renewal fees, and
• the effect of a Unitary Patent.

Representation. As to  the question of whether or not European Patent Attorneys should be entitled to individually represent parties before the future Unified Pantet Court (for background see here and here), this debate has been reopened by the JURI Committee by suggesting 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,

being in clear opposition to current Article 28 the “Revised Presidency Text” of the Draft Agreement on a Unified Patent Court and draft Statute (Doc. 16023/11) dated 26 October 2011, ruling that 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.

FICPI comments on this line of conflict under item 2.11 in a less open and somewhat ‘dialectic’ way by saying: “fine, European Patent Attorneys in fact are laweryers within the meanting of the text as suggested by JURI“. However, it appears doubtful whether the JURI wording (“parties should be represented only by lawyers authorised to practise before a court of a Contracting Member States”) would, if ever put in action, really be interpreted in the FICPI way, once it comes to the real test before a Court:

FICPI welcomes the stipulations concerning the rights of representation of parties in the UPC Agreement. In many Member States, qualified patent attorneys (including many FICPI members) are already “lawyers” according to Art. 28(1) UPC Agreement draft (such as attorneys at law), because they can represent clients before national courts, e.g. specialised IP courts. It is, however, also beneficial for the system that European Patent Attorneys having appropriate qualifications can represent parties before the UPC. Legal and economic studies have also strongly supported such representation by qualified patent attorneys.

The UPC Agreement will create a new legal system with new Rules of Procedure that will be a compromise between various traditions of EU Member States. This is expected to be similar to the proceedings at the EPO, which do include dispute-type inter partes proceedings, such as opposition proceedings and related appeals. Practice shows that less than 1% of clients in opposition/appeal proceedings at the EPO are represented by attorneys at law and that European patent attorneys have been well trained and suited to these special rules of proceedings and the complex legal and technical requirements for representation, including language skills.

FICPI therefore shares the opinion of the EU Parliament that it “is of utmost importance that parties are represented by lawyers with the necessary experience in both patent and procedural law.” Absent contrary indications, the EU Parliament appears to continue supporting the right of representation of European Patent Attorneys with appropriate qualifications and sharing the view of most of the stakeholders, including FICPI, that the current stipulations for representation are highly beneficial for the functioning of this system, provided that the “appropriate qualifications” are defined in a practical and reasonable manner, taking into account the national qualification regimes already in place.