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.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 30 October 2012

AIPPI calls for CJEU status quo in unitary patent matters



The ice sculpture at AIPPI's
Gala Dinner glowing in Seoul last week 
 The AmeriKat has just returned from a whirlwind trip in Asia which found her dancing Gagnam style in Seoul at this year's AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle) Congress and recovering from the post-AIPPI fun by climbing seemingly vertical hills in Hong Kong. As she landed in Hong Kong on Thursday, news came that the controversial resolution of Special Committee Q165 on the proposed unified patents court, which had been passed on Tuesday, had been published on AIPPI's website. AIPPI's resolution (found here) resolves the following:

1) AIPPI acknowledges that the process of creating a legal framework for a Unified Patent Court, and for the creation and exercise of European Patents having unitary effect, is well advanced.

2) AIPPI believes that the proposed system will not provide an improved experience for patent users. This is particularly the case if individual patent cases are subject to a third or fourth level of appellate review, with the General Court or the Court of Justice of the European Union (CJEU) being asked to consider substantive questions of patent law. AIPPI accepts that the proposed system is within the legal framework of the European Union and its existence and structure are subject to the review of the CJEU. It believes, however, that the Draft Regulation should be amended so as to make it clear that under the new system the CJEU will have no greater role concerning the grant or exercise of unitary patents than is presently the case for EP patents.

3) To that end, AIPPI reiterates its support for the deletion of Articles 6-8 from the currently proposed Draft Regulation on the Unitary Patent as agreed by the Council of the EU on June 28 / 29, 2012. It is recalled that the content of those articles already appears within the Draft Agreement on the Unified Patent Court and it is proposed that these provisions should apply to unitary patents as well.

4) AIPPI is of the opinion that it is essential for the acceptance and success of the Unified Patent Court that the original goals of the project which promised judges "with the highest standards of competence and proven experience in the field of patent litigation to ensure expeditious and high quality decisions and thus enhance legal certainty" should not be put at risk. To that end, it should be ensured that appropriate programs for the selection, training and ongoing support of such judges are put in place as soon as the Draft Agreement is approved.

5) AIPPI notes that the Committee for the Rules of Procedure of the proposed Unified Patent Court is presently working to provide a further draft set of procedural rules. AIPPI resolves that a public consultation period of at least 3 months should be allowed following the publication of this draft before any further steps are taken to adopt any text.
Having been privy to the committee's deliberations during drafting and the subsequent voting session, the AmeriKat was surprised that although strong objections were raised in relation to the proposals (complaints as to the legislative process, transparency, etc) an agreement on the resolution was formulated and passed relatively quickly ["Could it be because this is one area of patent law that most practitioners are in agreement on?", muses Merpel]. She also notes and welcomes the relatively strong position AIPPI has taken in respect of the involvement of the CJEU and the call that there be a proper consultation period on the Rules of Procedure.

Meanwhile, rumours still abound that Articles 6 to 8 will be removed from the Draft Regulation and replaced with a provision that does not subject substantive patent law to the CJEU's preliminary reference mechanism. What shape such a provision will take remains a mystery to the AmeriKat.

Courtesy of eagle-eyed IPKat friend, Chris Stothers, the AmeriKat can report that the agenda for the next JURI meeting on 6 November 2012 does not contain any mention of the unitary patent. This leaves the Amerikat surmizing whether the European Parliament will be prepared to vote on the proposals during their session at the end of November. She considers it highly unlikely that the current proposed timetable to adopt and sign off on the package by December will remain, especially with the need for some national governments, including the UK, to consult their respective governmental institutions on the package.

Indeed, the AmeriKat's favorite governmental institution, the House of Commons European Scrutiny Committee is expected to review the final regulations before the Council Meeting on 10 December 2012. The AmeriKat is doubtful whether the Scrutiny Committee will release the proposals from their scrutiny or whether they will take the opportunity to request the presence of new IP Minister Lord Marland in order to quiz him on the status of the proposals (which the AmeriKat hopes they do just so the IP community has an opportunity to observe his performance in a matter of vital importance to the future of patent law).

In the meantime, those who love reading pages and pages of procedural rules better get their red pencils sharpened, as the AmeriKat understands that the Rules of Procedure Committee will make their final (10th) draft Rules available on 20 November 2012.

1 comment:

Gibus said...

Yes the Council is still thinking to replace articles 6-8 in the regulation by a mere reference to the same provisions in the agreement for a unified patent jurisdiction (UPC). This won't work! It was anticipated in the Max-Planck Institute's paper: "The complexity would even be reinforced should the substance of protection become hidden behind a system of legal referrals replacing Arts. 6 to 8 of the UP Regulation, as is currently discussed as a compromise formula". This won't comply to EU Law. Just think about potential future revisions of these provisions: how could such revisions could be let to an International agreement? The regulation is EU Law, the unitary patent is EU Law. UPC is not EU Law. Substantive rights of the unitary patent cannot be defined outside of EU Law.

As for the AIPPI resolution, I've already commented it, in cousin PatLIt blog.

But let me insist on the responsibility of Mrs Fröhlinger and Mr Sueur in the failure of unitary/EU/community patent and UPC/EEUPC/EPLA projects. The very same people are trying to design a solution for decades now. They've miserably failed. Opinion 1/09 of the CJEU was specially strong in describing how detrimental EEUPC would have been for the Union legal, jurisdictional and institutional framework.

I'm surprised that these people are still heard. If people really want a unitary patent, they have to stop hearing their broken solutions. They may be very talented and popular for the patent microcosm (who will have the pleasure pay about 800 € to hear them in a ERA conference in late November in Paris), but they really have a pitiful record when it came to EU Law. Yep, even Mrs Fröhlinger who was director for EU Commission. I'm curious to see whether MEP Wikström will still back proposals leading to disunion and anti‑Europeanism of the EU.

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