Sunday, 5 December 2010

Protecting products by patents: a great way to spend a Saturday afternoon

To St Catherine's College, Oxford, to attend a seminar on patent law. Daniel Alexander QC, giving the opening scene-setting presentation, talked of his wife's scepticism about the wisdom of turning out to speak at such an event, at which surely the audience could be counted on the fingers, if not the thumbs, of one hand: but the room was full, with 40 or 50 enthusiasts (I think it's fair to assume that the description fits) present.

I thought protecting products was what patent law was largely about, except when it is about protecting processes. We heard a great deal about that interesting area where the two cross over - product-by-process patents - and the hook on which it was hung was the recent Monsanto case (Case C-428/08, Monsanto Technology LLC v Cefetra BV and Others, featured in my July podcast) in the Court of Justice (which speakers still called the ECJ).

Daniel Alexander's presentation, my notes on which filled seven pages of my notebook, was a formiddable tour d'horizon, considering the nature of the tribunal (no notable IP specialisation being apparent among the judges or advocates general). The court is asked to do relatively little in the patent field, few cases and no choice about which to entertain. The four big areas of patent law which are within the purview of the court are biotechnology patents, SPCs, remedies (by virtue of the enforcement directive) and controls on exploitation such as competition law.

References come, of course, from national courts, and are of uneven quality. The UK courts do a good job of presenting references, though often at the expense of length. the Court of Justice must work with one round of written observations from the parties and 20 minutes of submissions (compared with only 15 minutes in SCOTUS). The Advocate General has great influence over the outcome of a case, and AG Mengozzi in Monsanto was no exception. He is a distinguished professor of administrative and public law from teh University of Bologna - but no patent man.

Mr Alexander also mentioned the role of the juge rapporteur to whom the drafting of the opinion is entrusted, no dissents being allowed under a French law doctrine that considers the court as the depersonalised mouthpiece of the law. Whoever thought that up, said the speaker, had never met - hmm, perhaps I won't mention any judges by name in this blog.

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