|The Unified Patent Court: it has got to be somewhere round here ...|
As readers of this weblog will be aware, under the proposed regulations for the Unified Patents Court [don't ask for a link -- every time the Kat thinks he's got the latest version, another one pops up] every patent revocation action will have to be commenced in the Central Division. Counterclaims for revocation can be referred to the Central Division if the local court bifurcates infringement and validity issues, as the German court(s) will undoubtedly do since this follows their existing manner of handling patent litigation.
The IPKat's informant remarks thus:
"If it turns out that Germany is awarded the court, that jurisdiction would enjoy an enviable dominance over the proposed new European patent system. Unified patents and European patents will be both granted and opposed in at the European Patent Office in Munich. Patent owners will be able to sue for infringement in the German courts, safe in the knowledge that validity will be deferred to the Central Division, in Germany. This will mean that the strength of a litigated patent will not be tested when infringement is considered with the potential result that injunctions to restrain the infringement of those untested patents will be granted across most of Europe. Any eventual appeals would also be heard in Germany.
One might think that German attorneys would also be delighted at the prospect, but the numerous flaws in the proposed system -- which is being rushed through for the sake of political expediency -- causes everyone concern. Some of those concerns, particularly the cost of the new system, are eloquently expressed in this article from German patent attorney Thorsten Bausch of Hoffmann Eitle, who draws a timely analogy with the current difficulties in the Eurozone. Other concerns, notably the intended involvement of the Court of Justice of the European Union in clarifying (or not...) issues of basic patent law, are recorded in the clearly-articulated resolutions from the European Patent Litigators Association (EPLAW) which can be read here.
These are troubling times for the European patent profession, undoubtedly, but thee may be even more trouble ahead for those who find themselves sued in the German division of the Unified Patents Court, looking down the barrel of a patent of questionable validity which has been pointed at them, and with nowhere to turn if they want a swift decision on the issue of validity with which to protect themselves".The IPKat knows that the German system has many admirers, both within Germany and outside it, as well as critics. He therefore expects to receive plenty of comments both supporting and defending the position expressed above. He also feels that the issue of litigation on infringement which precedes the establishment of a patents's validity is a problem which will not be resolved by the location of the Unified Patents Court: it is regrettable in his view that we have still not been able to devise a system for post-grant validity challenges that operates swiftly enough for the ever-changing world in which we live.
Merpel speculates on another topic which is a little off-topic: she has often wondered whether the German patent system works well because it's a good system per se, or because the people who drive it are educated, well-trained and know how to make it work. But this is a subject for another day ...