For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 1 November 2011

Europe's Unified Patent Court: where will it be?

Utopia: sadly, not part of the EU,
and quite lacking in any
experience of patent litigation
In moments of idle of speculation (usually while waiting for web pages to download -- that's about the only free time Merpel gets these days) her feline fancies turn to a question which many have asked her, but which even the most intuitive twitch of her whiskers has not led her to an answer: "where will the Unified Patent Court be?"

Questions of this kind have cropped up before in the frenzied world of European IP and have been dealt with by spreading the offices around as follows:
  • European Patent Office: Munich and Berlin (Germany), The Hague (Netherlands), Vienna (Austria) and Brussels (Belgium)
  • Office for Harmonisation in the Internal Market: Alicante (Spain)
  • Community Plant Variety Office: Angers (France)
  • EURid: Brussels (Belgium), Prague (Czech Republic), Pisa (Italy), Stockholm (Sweden)
  • Community Registry of Trade Secrets: no information available ...
Some of these decisions have been strikingly successful; at the very worst, all can be said to have delivered an acceptable standard of service, give or take the odd bit of fine-tuning. What's more, with the occasional exception of the good folk who check your passport when you try to enter Fortress OHIM, there have been no problems worth mentioning so far as language is concerned, whatever the location.

In an effort to make Unified patent litigation more
attractive to litigants, the Commission will ask judges
to cast aside their traditional robes for brighter garb ...
So what about the Unified Patent Court? In theory it doesn't need to be anywhere: it could be a virtual court in which the judges, their staff, the litigants, representatives and witnesses simply pop into a video-conferencing centre and do their bit. This would be the cheapest and easiest option, but Merpel understands that it has already been vetoed by the Directorate for Judicial Wining and Dining, which points out that panels of judges function best (i) after lunch and (ii) as a consequence of having consumed said lunch in each's other's company -- and in the company of a decent bottle or two of alcoholic protected geographical indication. Nice work if you can get it.

Another option, though not a popular one, is to have not just one seat for the court but two or more seats. The European Parliament fell for this piece of expensive, environmentally unfriendly and logistically inconvenient nonsense when it split its various activities between Brussels, Strasbourg and Luxembourg. The trouble with arrangements like this is that they appear to be impossible to unscramble at a later stage, even if there is an apparent popular sentiment to that effect.

If the Court has to go somewhere, here are some options from which readers of this weblog may wish to choose:
Toulouse (France): a beautiful city of historic interest. Pleasant, temperate climate. Highly rated for its wining and dining, hence likely to be popular with the judiciary. Here oysters are eaten, not used as public transport tickets (cf. London). Feared by patent litigants because it is a homophone of the English words "to lose". Upside: has its own airport and is also the headquarters of Airbus. Downside: French air traffic controllers ....
London (England): if you want airports, it has five of them. If you want weather, stay around long enough and you can have whatever you want. It'so cosmopolitan that you have to be foreign if you want to feel at home. Loved by patent litigants now that it has suddenly become cheap and friendly. Upside: The Old Nick, spiritual home of the local IP blogging community. Downside: all British tennis players are programmed to self-destruct, annually, each June.
... while patent attorneys will
address the court wearing this
handsome Bulgarian headgear
 
Koprivshtitsa (Bulgaria): nestling in the mountains and with architecture reflecting the 19th Bulgarian National Revival period. Fresh, crisp air will help clarify judicial thoughts. Lack of night life and limited hotel accommodation means that lawyers and clients may have to share beds. Bulgaria hasn't yet been given a turn to host any EU office, so a strong campaign is expected. Upside: it's a long, long way from Alicante. Downside: try pronouncing it after you've had a few drinks.
Guangzhou (China): a strongly-fancied outsider. While the People's Republic of China (PRC) is not within the European Union, most of the EU's assets, technology and know how will soon be in the PRC, if they're not already. Conveniently placed for visitors from Hong Kong, this location also has the advantage of being equally inconvenient for all participants in any patent suit. Upside: exquisite local cuisine. Downside: half an hour after your case is decided, you feel like having another one.
Seriously, says Merpel, there's a lot to be said in London's favour. The city is a hive of IP activity; it's literally a-buzz with seminars, meetings, discussions, conferences that focus not just on patents but across the whole spectrum of IP; it also has a spectacular range of litigation support services, for those poor unfortunates who need things to be translated, transcripted, reformatted or generally processed by someone who is not a lawyer but knows what to do. With a large, patent-based professional infrastructure, experts are on hand to testify, and local law firms abound that can help deal with litigation overload.

The Old Nick: popular place of
pilgrimage, where visiting IP
enthusiasts can treat local
IP bloggers to a traditional
pint of Badger
London's recent investment in intellectual property litigation can be seen in terms of bricks-and-mortar (with the stylish Rolls Building), rules and regulations (with the revitalisation of lower-cost litigation in the Patents County Court) and even in flesh and blood (with strong judicial appointments to its IP trial courts and to the Court of Appeal). Years of competition both at home and abroad have ensured that the capital's hourly rates are comparable to those of similar practitioners in other countries, and recent judgments show that the old 'anti-patent' allegations aimed at the Patents Court are a hoary old myth. But, most importantly, London is the base for the preponderant majority of the IPKat blogging team, who hate to miss out on all the excitement ...

Merpel adds: if you have any good suggestions for the location of the Unified Patent Court, do let me know. Either post a comment below or email me here.

15 comments:

Anonymous said...

After much discussion, my team plumped for two separate seats: Malta for infringement; and Cyprus for validity. Both are sunny. (This is no coincidence)

Roufousse T. Fairfly said...

Lack of night life and limited hotel accommodation means that lawyers and clients may have to share beds.

I thought it was only poliics that made strange bedfellows. As long as the lawyers and clients belong to the same side...

Seriously, says Merpel, there's a lot to be said in London's favour.

It could be a contender if the sterling was devalued about 50%...

Hans Sachs said...

It's obvious. Athens in Greece. The EU could refurbish the Parthenon, which is looking rather shabby after 2,500 years. I'm sure that a big parking lot could be built right underneath it and a nice hotel on top of it.

And Greece could sure use a boost to the economy right now. Think of all all those rich Eurocrats working there and lawyers visiting.

A no brainer.

Hans Sachs

Steve Peers said...

You have recycled a common 'Euromyth': the European Parliament did not choose its seats, they were forced upon it.

The basic rule is supposed to be that EU agencies are given to newer Member States that do not already have one. I think this category comprises Cyprus, Latvia, the Czech Republic, Slovakia, Slovenia, Romania and Bulgaria, but I may have missed some new agencies that have been located in some of those States. Usually a batch of agencies is handed out at once, though.

Another factor is that the State concerned will surely be expected to ratify the patent litigation treaty; this point raises different issues from the normal allocation of EU agencies because it is possible that the ratification of as few as 9 Member States will be necessary for the treaty to come into force.

Anonymous said...

The Unified Patent Court is not really an agency. It's a court, which will apply EU law. As such, I think it should really be in Luxembourg and be part of the ECJ, where it will be able to moderate and harmonise the activities of those national courts which, if I remember correctly, may have considerable EU-wide jurisdiction over the unified patent. This may not solve some problems with the EU Patent, but hopefully it won't generate many new ones.

As an aside, I note that the UK government is pretty positive about the EU patent, as I think it should be. How does this square with the popular/ist "repatriating power from Brussels" mood?

Steve Peers said...

I agree that the court is not an agency, and furthermore there is the specific issue of avoiding the awkward situation of locating the court in a Member State that has not ratified (or is not among the first 9 to ratify) the litigation treaty. This criterion would point to locating the court in the UK, France or Germany - the only States whose ratification of the treaty will be individually essential, and therefore the only States which will certainly have ratified the treaty when (and if?) it first comes into force.

However, the location of the court will be decided at the political level, where the distinction between agencies and courts will perhaps not be appreciated. I wonder if the court might not even be offered to Spain or Italy, as a reward for dropping their opposition?

Perhaps it should also be relevant to examine which states have ratified the London Agreement (and which have therefore already shown a willingness to ratify patent treaties and to reduce the costs of patenting). Applying this criterion would actually rule out ALL of the EU Member States which do not yet have an EU agency (see my previous comment) - given that, having checked further, Latvia and Slovenia, which have ratified the agreement, do have EU agencies already.

At the very least, the court presumably could not be situated in a Member State which does not sign the patent litigation treaty. The non-signature of some Member States is a possibility, if the rule that only 9 ratifications are necessary is maintained.

The UK government's support for the project is consistent with the general view in the Conservative party that the EU should be concerned with the single market, but not much else.

Finally, I think there may be a general view that Luxembourg has enough EU institutions, and enough EU courts, already, plus (in particular) is rich enough already - although this may change if most of the banks in Europe become insolvent in the near future. Technically, the central division of the patent court will not be overseeing 'national' courts, but rather regional and local divisions of itself.

Anonymous said...

There really is only one logical place for a court that will draw in witnesses and parties from across the world, and call for significant litigation support, and that is London. Putting it anywhere else would be a second best choice and a disappointing compromise. It's a politically smart move too for all concerned. For the uk, to show that it does not just criticise but can pick up the ball and run with it. And for the eu, to show that it does not just treat the uk as a naughty schoolboy which doesn't deserve to be trusted with its institutions.

Anonymous said...

If I may suggest a place, it should be in İstanbul, Turkey. As you may know, Turkey has been negotiating with EU for becoming a full membership, for 6 years but before that almost 60 years maybe more the relations have been existing through various agreements, in all of which there were IP related articles, of course. But EU (commission) has never been satisfied particularly with the developments in enforcement related matters (pls. Take a look at progress reports ofn Turkey prepared by the Commission, actually one is almost enough, copy paste work).

So, to make it short, if the court established in İstanbul (it is really an amazing city, weather is certainly far more better than most of the places in Europe, amazing place to dine and wine, islands etc), it would help Turkey’s progress through maybe providing job-on-training for our judges through very knowledgeable European Judges, our judges can do internship etc. At the end, EU and Turkey would win, classical win-win situation, Commission’s concerns maybe diminish about enforncement related issues. All the complaints articulated would decrease and west meets with the east, a bridge could be launched (there are two bridges connection Asian side and European side of İstanbul, even if traffic a bit a problem).

Anonymous said...

In the past there have been insistent rumours of the court's seat being offered to both Spain and Italy in order to brib..., I mean, motivate them to support the unitary patent and litigation.

However, considering that it looks increasingly likely that the whole project will pass before the end of the year (unless the EU implodes in Greek drama before), that is, under the Polish presidency, and that Poland's sudden about-turn in the language question last year more or less clinched the enhanced cooperation deal, I would not be the slightest bit surprised if the central division of the court ended up in not-so-scenic Warsaw.

Whether this will be such a boon for the host country remains to be seen, since how the court will be paid for remains a notoriously open question (refusing to pick big tabs appears to be the most unifying European character feature these days), and the latest revision to the proposal for the court specifies that the host country will "provide the facilities"...

MaxDrei said...

Don't make the mistake of supposing that, if Poland gets it, it will be in Warsaw. Remember what happened to OHIM? Everybody flew home, knowing that it would be set up in Madrid. But then Spain opened a second round of horse-trading, amongst its own regions.

I have heard that Krakow is a beautiful city. Why should anybody veto Poland as the seat. Everybody wants to be friends with Poland, no?

Anonymous said...

Just imagine telling a US West Coast client - and they are going to be a big proportion of the court users - that they, their witnesses and their attorneys have to fly for the trial to Krakow/wherever. And then get real and settle for London. If it's going to run you can't hobble it before the off.

Hans Sachs said...

Is "Polish sausage" (aka "Kielbasa") a geographical indication? Should it be?

This might arise in any negotiations with Poland.

Hans Sachs

MaxDrei said...

The anonymous who urges us to "get real" and grasp that London is the only venue acceptable to California perhaps overlooks the factor that mainland Europe has one legal system while the British Isles (except for Scotland) has its own different English common law system, alien to all those continentals. The European patent system has 600 million users and 40 Member States of which only two run English common law. Germany, China, Japan and other future volume users also don't understand such quaint concepts as "equity", "disclosure" and "cross-examination" and so are much more at home in Germany. Germans go to law at the drop of a hat. Hugh Laddie was right, that the courts on the continent are indeed "a branch of social services". Let's ask Uncle Judge what he thinks, shall we, and then see if we can settle.

Going forward, I hardly think London can ever be a front runner. Those who suppose it to be so are the ones who need to "get real".

Edward Humphrey-Evans said...

Anonymous said at 8:58...
A significant barrier to London becoming the home of the UPC is, however, the inability of the population to work in anything other than their native language. Can you imagine UK court officers processing documents in Bulgarian?

Now who will do the maths?
How many patents that are litigated are in / were originally filed in the English language?
How many patents that are litigated are in / were originally filed in the Bulgarian Language?

Moreover, it is the court officers, not the population as a whole who will be administering the proceedings, so the population's ability to understand other languages is irrelevant.

English language is the language of the internet, modern communications and IP.

Whilst document "PI 141 COUR 62" is a working document and so cannot be relied upon, it is expected that the language of the proceedings will not necessarily be in the English language, but shall be reported and understood more quickly in the English language than any other language.

The best country to seat the UPC would be England and the best place to seat the UPC would be London.

London has the reporting infrastructure already in existence. Reported decisions in the English language will be communicated more readily than any other language and be more readily understood than any other language. Indeed, not only would decisions in other languages be reported promptly they would also be translated promptly into the English language and this will assist in communicating the ratio decidendi swiftly!

Indeed, this blog is in the English language. I am not aware of any blog in the Bulgarian language.

Maybe, dear Anonymous, in reading the IPKAT blog, you have answered, in part, the question as to in which country the seat of the UPC should reside, yourself.

Anonymous said...

MaxDrei misses the point with his comment on legal systems. The court will mark a new legal order and draw on elements of both common and civil law systems, but under one approach which of course must be a community law approach. The historic traditions give a rich cultural background from which to draw the best - this approach has already crept into EU IP law through e.g. the enforcement directive which introduces disclosure and other common law features as a matter of EU law. In due course the court is almost certainly going to lead to a community law approach to procedure generally.

The real issues come down to (a) the logistics - where are litigants and judges going to come to? and (b) the politics - does it make sense to spread institutions around the most eligible locations, or should we have an EU in which every patent institution is concentrated around the centralist hegemony gifting sceptics in the UK further evidence of how the only thing the UK gets from the EU is a bill?

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':