18 July 2012 by Pelle Neroth
The issue in question is the Unitary Patent, and Unified Patent Court, which will allow inventors to make a single filing to cover protection in 25 out of the 27 EU states. This gets complicated. There is already a "European Patent", a non EU construction which covers 38 EU as well as non EU states. The European Patent is about making one filing that creates a bundle of national patents, with litigation taking place in national courts.
Under the new patent, litigation will take place at one court. Actually three, after some late night horse trading among Europe's big trio. Paris for most patents, London for pharmaceutical patents and Munich for mechanical engineering patents. A unitary patent has been discussed for decades. It could regularise outcomes and save money on filing charges, say supporters. The British Pharmaceutical Industry Association and the CBI were cautiously positive about the move.
Others are less positive about the Unitary Patent. A recent Commons European Select Committee enquiry* concluded that Unitary Patents are good in theory but flawed in practice. It concluded that after hearing largely negative witness testimonies that argued that the new situation would be worse than the status quo.
A big complaint was the new concept of "bifurcation" in the new system, imported from German law, which separates the testing of validity and testing for breach of patent, unlike British law where validity and breach are determined at the same time.
Say you are small UK company with a trading presence on the internet. You are sued for breach of someone's patent in a court somewhere in Europe - one with judges inexperienced in patent issues.
The injunction will be granted and your company will be out of business before it goes to the appeals process in Paris and it is determined the challenge was not valid after all, three years later. Since the patentee can choose which EU country to sue in, he might choose the one mostly likely to grant an injunction, a process also known as "forum shopping". This will hurt the very SMEs the legislation was supposed to help.
The current European patent is better because, as a series of independent national patents, you avoid the long arm of the single, pan European injunction.
The European scrutiny committee felt that some of the disadvantages would be mitigated if London was awarded the court. London is Europe's leading centre of patent expertise, along with Munich. English is the language in which most international patents are filed and, amazingly, the UK does not have any European institutions.
Instead the main court - which will transact an estimated 70% of business - will go to Paris, a country where patent expertise lags the Netherlands. Germany and the UK. It will bring legal business to the French capital (at London's expense) and give the French judicial system a disproportionate influence on the new case law.
MPs for the scrutiny committee felt the Unitary Patent should be delayed for these reasons, plus the fact that procedures and pricing plans were very sketchy. But the European Parliament and Commission want to move on, perhaps because they want to show a victory for the concept of closer Europe in these difficult times. The EP even wants to reinstate the articles that make the ECJ the final court of appeal, which David Cameron had taken out for adding an extra layer of bureaucracy.
British MPs have concluded that, if the UP did go ahead, it would be better if Britain if remained inside a flawed construction than marginalised by being outside it. It is a Hobson's choice, like so much about the EU these days.
Pelle Neroth -- EU correspondent
Posted By: Pelle Neroth @ 18 July 2012 07:18 PM Patent
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