The New European Patent by Alfredo Ilardi

There is an endless stream of interesting intellectual property events in Oxford, to which I always intend to go. Unfortunately, even living a mere 20 miles away, getting into the city is far from simple. Those medieval town planners failed completely to make the place car-friendly, and the profusion of bicycles with particularly (on average) idiotic riders makes driving an unattractive option. There is a bus from the village, but not necessarily a bus back at a convenient time. The train from Didcot is a good choice, but the station is five miles away and parking often ludicrously expensive. So, to cut a long story short, I haven't been to more than a couple of IP events in Oxford in all the time I have lived here.

Receiving an invitation to a book launch, for Alfredo Ilardi's "The New European Patent", published by Hart, Oxford's smaller legal publisher, stiffened my resolve. Meeting the Hart people, especially the founder Richard Hart (a noted runner), was an attraction, and who knows who else might be there? Very few people, turned out to be the answer, and only one member of staff from the publisher, the founder being at another launch party. I learnt from her that the company is now part of Bloomsbury, still presumably spending the Harry Potter millions on acquisitions.

Alfredo Ilardi, former Head of the Collection of Laws and Treaties of the World Intellectual Property Organization, has produced a worthy book. I take issue with its title, as its subject is not a new European patent but a new European Union patent, as the blurb makes clear:

"On 17 December 2012, following a complex negotiation which lasted 12 years, theEuropean Parliament adopted Regulations (EU) 1257/2012 and 1260/2012 and the text of the Agreement on a Unified Patent Court (UPC Agreement). These instruments institute the ‘European patent with unitary effect’, the first unified system for the protection of inventions within the European Union. The two Regulations will be applicable after the entry into force of the UPC Agreement, which was signed on 19 February 2013 by 24 Member States of the European Union. This book traces the evolution of the idea behind the institution of the European patent with unitary effect, including a comparative analysis of the existing parallel regional and international procedures for the protection of inventions. It presents a synthesis of the different phases of the negotiations which led to the adoption of the first unitary patent system within the European Union. In addition it examines the provisions of the two Regulations, of the UPC Agreement and of the jurisdictional system under Brussels I Regulation. Finally, it reproduces in the Appendix the texts of Regulations (EU) 1257 and 1260/2012 and of the UPC Agreement."

But the subject-matter is important, whatever it might be called. A brief glance t the book, however, showed me that the author (as you might expect) takes a rather historical approach, so it might be a bit short on substance: not a practitioner's book, I suspect. And as if to demonstrate the difference between the practical and the academic, which I always tell students are more closely-related in the IP field than in other areas of law, the author extols the virtues of the Community trade mark system. I cannot refrain from responding. To my mind the CTM is an almost unmitigated disaster, a bully's charter, encouraging foreclosure and depletion to such an extent that new entrants are hard-pressed to find a mark to use and established businesses from outside the EU can find their established trade mark useless in the face of ludicrously wide registrations that can only be challenged for lack of good faith (for which read, cannot be challenged). If the Unitary patent turns out the same way, it will not be a Good Thing by any measure except that of the multinationals who will find it conducive to the arrogation of market power.

My brief perusal of the book also took in what I always check for in law books: how many pages are real book, and how many mere stuffing (legislation and the like)? At 164 pages (hardback) it's not unreasonably short, but more than half of it comprises appendices of one sort or another. It makes it very expensive, per page of text, especially nowadays when the legislation is freely available online and in any event is mostly not yet final and likely therefore to change. I may be doing it an injustice: I had only a brief look at the book, and if the UPC will be your stamping ground once you are allowed to stamp in it, this book will surely be essential reading. So too, and perhaps more practical, will be Hugh Dunlop's "European Unitary Patent and Unified Patent Court", the second edition of which was pubished last year by CIPA and which is about one-third (90 pages) text and the rest appendices, probably the same ones as in the Hart book. Now I've got it down from the high shelf where it had rested since I received it, I'll have a look at it and write a review. That's easier when you have a copy of the book ...

Details of the Hart book: ISBN 9781849468336. RSP: £65 / US$130 / CDN$130.
http://www.hartpub.co.uk/books/details.asp?ISBN=9781849468336

Court of Justice rejects Spain's objections to UPP

The IPKat reports that what he insists on calling the CJEU has rejected Spain's objections to the Unitary Patent Package: you can read the Court's press release here.

Interested in learning a bit about the Unitary Patent and the Unified Patents Court?

If so, listen to the 'Run Through' lecture I have just recorded, and if appropriate claim half-an-hour CPD (for which you'll have to request the multi-choice questions and pay a very reasonable £10 plus VAT).

The patent system almost nobody wants comes a step nearer

The three instruments which together make up the scheme for a unified patent for the European Union are slowly making their way through the legislative process, which seems to get more convoluted as time goes by, and today the Council looks set to take another step towards putting in place what many regard as little more than a further burden on small and medium-sized businesses (see for example this paper by Dr Jochen Pagenberg, probably the most vociferous critic of the scheme).

My own opinion, for what little it is worth, is that the unified patent idea, which looks good on paper, stinks. It is good for Big IP and its lawyers, bad for everyone else, which is a theme you can see running through most developments in the IP worlds at this stage of their development. I recall back in the mid-1980s, when my job at the CBI had the grand title "Head of Commercial Law", no-one really seemed to want the Community Patent Convention: the EPC delivered all the benefits they could ask for, even the big multinationals, but the project clearly has momentum that, eventually, is irresistible.

But I will leave the criticism, for now, to Dr Pagenberg, and make this posting factual. Mostly, anyway. On 19 November COREPER agreed a package, comprising a draft regulation creating the unitary patent which is proceeding on the basis of Enhanced Co-operation a (Euro speak for co-operation between not all the Member States, in this case 25 because Italy and Spain are not taking part), the language regulation, and a 26 member international agreement which will set up a single specialised patent jurisdiction.

The main regulation will create a one stop shop at the European Patent Office in Munich, which will grant patents effective in the 25 member states which are taking part. After a twelve-year transition period, the sort of thing that only the European Union could dream up, there will be a 23 language regime both before and after the patent is granted. Applications may then be filed in any language but processed in English, French or German, and after grant the claims will be translated into 23 languages. Contrary to first appearances, this, it is claimed, will cut translation costs by 80 per cent.

As for the unitary patent court, all the governments at the November council meeting agreed that the seat should be Paris, with satellite courts in London and Munich. The London Court will deal with chemical and pharmaceutical patents and the Munich court with mechanical engineering. That much appears to be fairly non-contentious, the product of a typical Euro horse-trading exercise, but there is a great deal of excitement over changes made to the text in July 2012 on the initiative of the United Kingdom. Articles 6, 7 and 8 of the proposed agreement were deleted, and equivalent provisions added to the parallel international agreement (articles 14 septies to 14 nonies: I think you know you are in trouble when an instrument's numbering gets to bis, let alone septies and nonies, rather like the Z sections in some UK legislation like the Registered Designs Act). Article 6 dealt with the right to prevent third parties from making direct use of an invention, Article 7 with knowingly supplying means relating to an essential element of the invention, and Article 8 to limits on the effect of the single patent. In other words, these three articles described the effect of the granted patent, and deleting them removes from the regulation the essence of what patents are all about. Removing them meant that the Court of Justice could not review infringement matters. The powers of the Court of Justice have been removed and then given to the EU Patent Court, whose authority is therefore boosted. A new article 5bis will throw the matter back to national authorities.

Members of the European Parliament were dismayed at these deletions, saying that it went against the previous agreement that had been reached between the Council and the Parliament and moreover were illegal. Bernard Rapkay MEP, German Social and Democrat member, and the rapporteur for the Legal Affairs Committee (which inevitably in this age of text-speak seems to have become known as JURI), says the removal of these provisions has gutted the enforcement provisions of the regulation and left nothing for the Court of Justice to do (which presumably was exactly what the UK government wanted to achieve). And Mr Rapkay says that the November text appears compatible with EU law and respects the Court of Justice's power to ensure consistent application of the legislation. It also upholds the parliament's right to be involved if the patent rules change. He described the compromise as "sub-optimal", but thought that the Legal Affairs Committee would be able to accept it (see the EP press release here). Nevertheless, the compromise has been criticised by the Greens and European Free Alliance for its lack of legal certainty, with Eva Lichtenberg  MEP (Austria) saying that it ''poses a risk of endless legal proceedings. It is not what we need."

Council is now expected to accept a compromise on the 10th December and Parliament may go on to vote on it in the same week. Then the regulations could be adopted on 21 December and the international agreement signed on 18th February, with the whole package becoming effective when the international agreement is ratified.

While the compromise seeks to deal with the Article 6 to 8 problem, some doubt its effectiveness. The removal of those provisions clearly did not comply with Article 118 TFEU because the deleted articles defined the very substance of the rights conferred by the EU patent. The proposal therefore did not conform to the legal basis set out in the Treaty. The EP declared the removal of those provisions unacceptable and postponed a plenary vote: but placing the same provisions in the international agreement will not work either, according to some critics including the Max Planck Institute. The method of the compromise has also come in for a good deal of criticism. But the bandwagon seems to roll on.

Unified Patent Court: progress - if that's the right word

Reports last week suggested that the UK government had successfully brought the EU patent behemoth to a grinding halt. More careful examination of what happened shows otherwise. There will be a Unitary Patent Central Court, and there will also be two sector-specific courts, one for mechanical engineering and the other for chemistry and "human necessities". I must be missing something, but patent agents used to divide the world into mechanical, chemical and electronic, and the last of that trio seems to be missing.

Munich gets mechanical patents, London gets chemical and that other category, and Paris gets the central division. Maybe I am missing something, but a classic piece of EU horse-trading hardly justifies celebration, does it? The so-called Intellectual Property Office is clearly happy, saying in its highly uninformative press release:

The Prime Minister has today secured a great result for UK business at the European Council on single unitary patent valid in up to 25 European countries and secured London to be the host for the unified patent court. (If one had to say one city was the host, surely Paris would be the candidate? But it's quite wrong to say that there is one host.)
The Prime Minister, David Cameron said:
"A vital part of the Court covering the pharmaceutical and life sciences industries, in which Britain excels, will be coming to London. This brings millions of pounds and hundreds of jobs. (The litigation, or the industries? If the latter, which I imagine is the case, how is this remotely relevant to the situation of the sector court?)
"And I secured the changes to the nature of the patent system that businesses were demanding." (I don't think there is much agreement among businesses about what changes were needed - and it seems abundantly clear that the vastly increased expense of obtaining patent protection and litigating at the EU level is as far from the interests of small businesses as one can possibly get. See that FT article a link to which I posted earlier ...).

The heads of state have suggested the deletion from the Regulation of the provisions dealing with enhanced co-operation, a typical EU-euphemism  (a EUphemism, perhaps?) for a form of co-operation which does not include all Member States, which most people would consider to be a failure of co-operation rather than an enhanced version of it. It is a steamroller that nine or more Member States can drive, to the exclusion of the others. Of course, in the patents field (apparently, according to Wikipedia so this must be correct, divorce law is the other area in which enhanced co-operation is being used) Spain and Italy are the outsiders. The suggestion that enhanced co-operation should not be used here is a welcome development as far as most people in the patents world are concerned - as the PatLit blog observes:

... the constant criticism by the experts in the field (see e.g. Professor Krasser's opinion and Sir Robin Jacob's opinion) has been successful despite of the deplorable lack of transparency (see J. Pagenberg's letter here).

Spain and Italy challenge unitary patent

Spain and Italy have filed a complaint at the Court of Justice in Luxembourg against the proposals to bring in the unitary patent (for the European Union, minus Spain and Italy) using the ironically-named "enhanced co-operation" procedure, which seems to have nothing to do with co-operation and much to do with taking a pragmatic approach to opposition from a minority of Member States.

The Commission's hope - and the hope of many others too, including my Spanish friends whom I quoted on this blog a week or so ago - was that Spain and Italy would see a way to waive their objections, which are based on the omission of their languages from the list of official languages of the proposed system (a traditional reason for opposing supranational legislation in the intellectual property field). No doubt there is a great deal of horse-trading still to be done, but evidently they are not yet ready to back down.

A Spanish view of the EU Patent

My friends at J Isern Patentes y Marcas point out in an interesting article that the Spanish position on the EU patent, understandable as it may be as a means of preserving the importance of a major European language, will put Spanish businesses at a disadvantage, relegating them to a second division within the EU. Pepe Isern concludes:

El sacrificio en aras de una patente única debería haber sido para todas los países por igual y en todo caso establecer como lengua franca el inglés.

Or, per Google:

The sacrifice for the sake of a single patent should have been to all countries equally and in any case to establish English as a lingua franca.

Which has come to mean a language adopted as a common language between speakers whose native languages are different, but originally meant the blend of Italian with French, Greek, Arabic, and ironically Spanish, used in the Levant. I guess the fate of English is inevitably to be a lingua franca in the modern sense: good  for the rest of the world, good for English-speakers (who don't have to bother learning others' languages - I was being ironic there, because what are they missing out on?), bad for the English language. But the point is made that 85 per cent of scientific and technical literature is in the form of patent specifications: of course those specifications are available to researchers in Spain whether or not Spain joins the unified patent system, and the problem is that Spanish innovation will not be as fully protected as innovation in other EU countries. However, isn't the larger part of that 85 per cent going to be in English anyway? Should the European Union just go with the flow?