For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Thursday, 11 August 2011

References to the Court of Justice: more time, transparency needed

Yesterday the IPKat received another of those little reminders from the International Policy Directorate of the United Kingdom's Intellectual Property Office (IPO), reminding him that strife and discord are not confined to the inner city streets of England but can be found in the Court of Justice of the European Union (ECJ) in Luxembourg too, where Italy is taking most of the rest of Europe to court for changing the rule of the patent game and telling Italy it can only play if it agrees to accept them.  This post is not however concerned with the rights and wrongs of "enhanced cooperation in the area of the creation of unitary patent protection" [a marvellous euphemism, says Merpel: can cooperation between only 25 countries be said to be an enhancement of the usually-required cooperation between 27 countries?].  It is concerned with the mechanism by which the UK government seeks responses from those whom it purports to serve.  The reminder received by the Kat reads like this (with hyperlinks added by this weblog):

"We have received notification of a new case referred by Italy to the Court of Justice: C-295/11. The case concerns an application for annulment of the Council Decision of 10 March 2011 and the legal base for authorising enhanced cooperation in the area of the creation of unitary patent protection. 
This case and the pleas in law and main arguments can be viewed on our website at:
http://www.ipo.gov.uk/pro-policy/policy-information/ecj/ecj-2011.htm 
If you would like to comment on this case please e-mail policy@ipo.gsi.gov.uk before 16 August 2011. 
Further information on IP ECJ cases can be found on our website http://www.ipo.gov.uk/ecj.htm
Regards ...

Please note: The information you supply will be held in accordance with the Data Protection Act 1988 and the Freedom of Information Act 2000. Information will only be used for its intended purpose. It will not be published, sold or used for sales purposes. ..."
First, the good news.  The Directorate has now included the bit about "Further information on IP ECJ cases can be found on our website http://www.ipo.gov.uk/ecj.htm", which is at least of some help.

Now the bad news. There is still an absurdly short time in which to respond to the IPO's invitation to make comments -- five days from start to finish, inclusive of a weekend, in the middle of the holiday season.  An email to the IPKat from a kind and helpful soul at the IPO informed him a few weeks ago as follows:
"You asked why can't we give more notice of a call for observations on CJEU cases and asked if we could publish observations so other observers could add to rather than repeating observations already made. 
You may already be aware of the information at http://www.ipo.gov.uk/ecj-refs.htm which explains how we attempt to inform stakeholders as soon as possible [the Kat had no idea about the existence of this page, which was not -- and still is not -- made available to recipients of IPO circulars inviting people to comment on cases referred to the Court. Its text is reproduced below] but I am afraid that the tight deadlines are rather a feature of the system as explained under the heading "deadlines and how we calculate them". Integrating our actions with treasury solicitors and working to the deadline set by the court necessarily means there is little time left to canvass views from interested parties.[Come off it. This action was commenced on 10 June 2011 and is likely to take a couple of years unless it gets rushed through. Is a five-day window the best that the UK government can manage?] 
On the point of publication of observations, policy colleagues inform me that we have not previously been asked to publish observations and we are conscious that making observations public may draw some into the debate reluctantly, feeling that they need to counter observations already made [indeed, it would be most inappropriate for people living in one of the world's oldest and proudest representative democracies to be drawn into anything resembling a debate. After all, the civil servants at the Treasury Solicitors office and their colleagues in the IPO should be troubled by anything so disturbing as an exchange of opinions by those people who happen to work in patent-related fields and whose opinions are actually worth something] ...."
The information at http://www.ipo.gov.uk/ecj-refs.htm reads thus:
"Handling of cases before the Court of Justice of the European Union Why we consult on ECJ cases 
... What we publish on our website 
The Treasury Solicitor’s Department (TSol) send us full details of every case concerning intellectual property matters. We are only able to publish the specific questions that the ECJ is being asked to answer, and brief details such as the parties to the case and relevant legislation. We cannot publish the full reference to the ECJ. [Why not? Doesn't "cut-and-paste" work any more? Is it against the law?]

When we update our website 
We aim to publish information on new ECJ cases as soon as we receive them. Although our target is a maximum of two days we often publish them on the following day of receipt. [This is presumably two days from receipt of information from the Treasury Solicitor. But doesn't the IPO monitor the Curia website and/or get information about IP cases directly? Can't the IPO and the Treasury Solicitor receive information simultaneously? There's some fairly instantaneous technology in place for this purpose ...] As soon as the website is updated we issue email alerts via our ECJ alerts service.

Deadlines and how we calculate them 
We face tight time limits in which to consider and provide advice on ECJ cases [So do we, but ours are considerably tighter]. Member States have two months after receiving notification from the ECJ in which to make written observations. References on intellectual property law reach us within two weeks of receipt in the UK via the Treasury Solicitor's Department (TSol) [Hell's bells! Even the IPKat's Yahoo! account manages to transmit information within a couple of seconds. Two weeks is ten working days]. They need about five weeks in which to instruct Counsel and prepare any intervention, and set us a deadline accordingly.

In practice, this usually gives us a maximum of two weeks - and often less - in which to consider the case, provide advice to our Minister, and seek clearance.

The deadlines that we provide for comments take all the above factors into account. This means deadlines will frequently be five working days or less, depending upon when we received them.

How to provide useful comments 
We understand how difficult it often is to provide detailed comments in the time available. A short email saying how you think a question before the ECJ should be answered and why, received in good time, will be more useful to us than detailed comments received close to (or after) the deadline [A question? Many questions come in multiples and are remarkably complex: this is simply unrealistic in most cases]. You are welcome to provide further comments after our deadline, as they may come in valuable if we have chosen to submit observations, or if we are later invited to attend a hearing.

Discussion of the content of UK observations 
We are unable to disclose the content of UK observations while a case is active before the ECJ [Why? Is it against the law? We're not talking about secrets, are we? We're talking about submissions which are made to a court which is not generally a trial court but a court which rules on abstract legal propositions. These submissions are made by a government which purports to represent us but won't tell us how it's doing so] ".
The IPKat thinks a lot more can be done to enhance the openness of ECJ references. He advocates publication of submissions of interested parties to the IPO as well as of government submissions to the ECJ, unless a clearly specified and justifiable reason is given to the contrary.  He's not blaming the IPO, who are always as helpful as they can be: he's blaming a system that is not, in his ever-so-humble opinion, fit for purpose. Merpel agrees.

5 comments:

Anonymous said...

Thank you for hihlighting this topic. You hit the nails on the heads with the issues that you flag. Whether the UK will intervene at all, and indeed what position it will take are totally non-transparent, effectively preventing any ability to try and get a decision reversed.
There appears to be a bias towards not intervening, at least in part based on cost. If the UK is to become more assertive internationally and in the EU then this would clearly be a place to start.

Anonymous said...

I agree with the transparency points but, wrt to time allowed for comments, referrals are usually published well in advance of the UKIPO invitation to comment. So interested parties can begin preparing their submissions well before the anticipated e-mail fixes a deadline for supplying them to the UKIPO.

Anonymous said...

Input into the debate from interested parties via the legislative process is fine and dandy and a necessary pre-requisite to democracy.

But doesn't intervention into a debate, or indeed the fact of an extenal debate being invited at all, sit a bit oddly at least from the perspective of a common law seapartion of powers tradition?

We should expect the courts to pass legal judgment based on the law, not on the way the political wind is blowing by some majority vote of political inputs from third parties. Even if, in doing so, they rule against something we'd like.

Ron said...

It is interesting to contrast the cited passages from the IPO's reply and their ECJ page, with various statements in the Government Response to the Hargreaves review:

Page 3 bottom of col 1; "The fundamental issue however is that key data is held by businesses and other organisations. IPO will work with those organisations to help them offer good-quality evidence: our challenge to them is to do so."

Page 4 first col "Evidence is a key part of making the UK's case in international fora and with other governments..."

5 working days is hardly consistent with the Government's stated objective of helping organisations to offer "good quality evidence" .

Anonymous said...

In part this reflects frustration (and lack of understanding) arising from the ECJ’s continued insistence on the confidentiality of written observations and other documents in pending proceedings. For my part, I think that the strict approach to confidentiality looks increasingly at odds with the openness which the ECJ’s case law is promoting in relation to access to documents of other EU institutions (see e.g. for a recent judgment http://www.brickcourt.co.uk/news/08-08-2011---access-to-documents-in-competition-law-proceedings.asp). Not to mention difficult to reconcile with principles of open justice, Article 6 etc. Ripe for challenge? Especially when the ECJ accedes to the Convention?

I am not aware of central government having a formal process for regularly consulting stakeholders about pending references in other fields. Does this happen in other areas?

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