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Thursday, 16 November 2017

Speech from European Judges Forum: But Sir Robin, let's be frank, we will put (just to be short), in Milan the Central Court...

The AmeriKat enjoying the closing lines of
Mario's speech at the European Judges
Forum in Venice
Every year, usually in October, a gaggle (or is it a judgment) of patent judges amass in San Servolo (Venice) at the European Judges Forum where they discuss the latest goings-on in European patent law and practice.  San Servolo is a secluded island close to Venice, but not easily connected to the city (making it difficult for anyone to escape).  Nobles who were declared to be mentally unsound resided here, away from the rules and forms of Venice.  It is therefore the natural location to to hold a forum where patent judges and lawyers can exchange ideas and experiences.  Some say that the acknowledgement that European patent judges give to decisions of their fellow European judges stem from this forum.

This, the 12th year of the conference, saw 35 judges of 15 nations (Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Latvia, Netherlands, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom) pull together.  They were joined by 31 European lawyers and seven officers of the EPO.  This year, the forum debated SEP and FRAND, discretion on injunctive relief under the UPC, case law on damages and an update on the UPC from Alexander Ramsay.  The focus of the forum was a mock trial decided by judges from the Netherlands, Sweden, Italy and Germany.

At the Forum dinner, this time held in the city of Venice,  Mario Franzosi (Franzosi Dal Negro Setti) delivered a wonderful speech  - partly in English, partly in the langue d’ oil - with contributions from Judges Marina Tavassi, Gabriella Muscolo, Klaus Grabinski and Sir Robin Jacob.  The speech was too good not to share with the IPKat readers (for which the AmeriKat thanks Mario and his contributors).

So, now imagine you are in the wonderful city of Venice, dining by candlelight (with a bunch of patent lawyers) and Mario stands up....:
"Ladies and gentlemen.  
After Brexit, we have to decide which language to use. Some European countries have English, but not as the first language.

Charles the fifth said that there are four languages to consider. “I speak – he said – Spanish to God, French to men, Italian to my lovers, and German to my horses”. What to choose among these four?

The problem of language is serious. For instance, Robert van Peursem wrote a beautiful report on Equivalents, but unfortunately in Dutch.
  Robert, do you have a translation in one of these four languages? (Van Peursem answers: Yes, German).   
So Robert, please send it to me and I will give it to my horse. Better, you may send it directly to horse@franzosi.com. 
I think the most appropriate (to stay closer to our evicted British friends) would be Anglo-Norman, a dialect of the langue d'oïl, that was spoken in Normandy in 1066. 
There is a poem that wonderfully describes our situation:
Halt sunt li pui e tenebrus e grant, 
Li val parfunt e les ewes curant. 
Sunent cil graisle e derere e devant 
E tuit rachatent encuntre l’olifant.
(High are the mountains, dark and majestic;deep are the valleys and the waters running. Sounds are heard here and there, but the Oliphant of Angela Merkel answers to all of them). 
Here we are, at a turning point of our enterprise to set up a truly European patent judicial system. When judge Scuffi had the idea (to which I most humbly participated) of creating a forum for European judges, so that they could make their systems converging, we thought that the establishment of a Unified Patent Court would had been the crowning of this initiative, but also the end. Therefore, we considered the attainment of the UPC with mixed feeling, as an exaltation, but possibly a termination, of our Venetian venture. I am happy to say that the mission of our Venetian enterprise, as a preparation of a future European patent court, will continue for decades and decades.

But first: do we really need a unified patent court? It was said (by a most experienced authority) that in America 10% of the patents granted are litigated; while in Europe 2 out of 1000. Therefore, on the basis of this authoritative data we can make a simple calculation. According to these numbers, that I do not dare to question, in America there are about 30,000/40,000 patent cases every year. Since the average cost of a patent case is (AIPLA data) 5 million dollars per party, namely 10 million dollars, patent attorneys receive about 300 billion dollars. This is a little more than the gross national product of Croatia, Slovenia and Czech Republic combined. I esteem an additional number of 500.000 attorneys is needed in America. This is why I personally got the green card. Nevertheless, America still needs 499.999 attorneys.

By contrast, it is said, in Europe only two patents per thousand are litigated. This means that in Europe there are about 140 patent cases per year, which is the number of patent cases in Milan. Therefore, it is clear to me that we do not need the UPC, since everything is dealt with in the Court of Milan. I would suggest to pack up and go home.

Ladies and gentlemen. I will handle a subject where probable truth will hardly gain assent. I know that the bosom of the earth (the humble soil here corn grows together with weeds), is the proper ground of illustrious men, the most clever and proud, and of those who cultivate philosophy without enervating the mind. I have the earth in high consideration. Therefore, if the UPC does not go to the sky and is interred, instead, in the earth, then it will have the destiny of even the most illustrious men.
 
In the soil, either the spirit is annihilated, and has no sensation of anything, or death is a certain change of status, a passage to a better status. I believe so, and I believe the UPC will live with Orpheus and Musaeus, with Hesiod and Homer: most noble companions. It will live with Ajax, the son of Telamon and all the others that had lived a life of honor, and have died of an unjust sentence. If so, the UPC will remain a bodiless dream of nature, living in a more dignified and noble ether. I am sure the UPC will discuss with Ajax of the difference between Kort geding, Einstweilige Verfuegung, Procedure en Référé, Anton Pillar Order, Misure Provvisorie.

Which status is better, either to drag a useless life of useless preparation, or live in the world of the dead, with Orpheus and Homer, is unknown to everyone but God.

Ladies and gentlemen. We have undertaken a mission for which we had no allies but our good will and our valor. Our cause was and is just. Even if our resources are limited, our will is unconquered. Nothing is lost, apart from our patience. As it is said in the Chanson de Roland:
Li empereres chevalchet ireement 
E li Franceis curuçus e dolent; 
N’i ad celoi n’i plurt e se dement,
E prient Deu qu’il guarisset Rollant
(Angela Merkel rides furiously, and the French army sad and worried, and everybody cries and loses head, and ask God to save the UPC). 
For the UPC there is a sumptuous variety of meditation, something that compels the strangers’ admiration, and regret. We have counted in the course of the years several variations of humor in relation to the system: each which a simple version and with a complex version. There are several versions of the Rules of Procedure: eighteen, if I correctly remember, or are they eighty? I think it will make the fortune of the man who really wants to investigate the human mind.
Josque il vengent el camp cumunement   
Ensembl’ od lui i ferrunt veirement.  
De ço qui calt ? car ne lur valt nient.  
Demurent trop, n’i poedent estre a tens. 
(At the battlefield, they will fight furiously. But all this is vain, all is useless. Too much they delayed: they cannot arrive on time. China and India are pressing.)

Ladies and gentlemen. Patent people are by nature patient and forbearing. Do not despair, also because you do not know how the world changes. You have no vision of the future, and do not even know what the weather is going to be.

If one could look into the seeds of time  And say which grain will grow and which will not,
There is no substitute for wisdom, and the second best after wisdom is silence. 
Therefore, I take a seat and do not utter further words. But first, let me recite a sonnet that I have written when travelling on the vaporetto tonight, going from Venice main island to San Servolo (a small island, the place of the hospital – in the old good time- for insane persons, but only of noble descent) and that I have finished only a few moments ago. It was written with the help of judge Marina Tavassi, President of the Court of Appeals of Milan; Gabriella Muscolo, of the Italian Competition Authority; Robin Jacob, who you know well; Klaus Grabinski, of the German Bundesgerichtshof (somehow unhappy with the initial consideration of the German language by Charles the Fifth, but cooperative, nevertheless). Here is the result of our brains:
Noble Britain, proud and wise  
Do not trade your life with dice  
Take it easy, take a sit
And don’t do, don’t do Brexit. 

No, my Britain wake you up  
Stay with us, and raise the cup.  
Take it easy, take a sit  
And don’t do, don’t do Brexit.   

Choose Venezia, and not May  
It’s not time to run away  
Like brave soldiers, close the rank.

But Sir Robin, let’s be frank  
We will put (just to be short) 
In Milan the Central Court. "

3 comments:

MaxDrei said...

as to the usefulness of the UPC, here is what I posted, earlier today, to the Kluwer blog:

When it comes to the UPC, the level of pleading from vested interests, parties with “an Agenda” is enough to make one puke.
I started in the patent profession before the EPO, in the days prior to the Protocol on Art 69 EPC, when Germany decided scope of protection one way, and England in a very different way.
Since then, there has been ever greater harmonisation throughout EPC-land, and a huge gain in legal certainty. Not because of any pan-European court but because of enlightened performance at the EPO (until recently), and comradely behaviour from the patent judges in the leading EU jurisdictions. Judges are only human. They want their clear and logical thinking to be adopted by their brother and sister judges in the other jurisdictions. Bear in mind that these other jurisdictions have very different procedural law. But they come together regularly, to debate and minimise their differences, which are steadily diminishing (see the latest Decision by the UK Supreme Court, to aligh itself with mainland Europe).
This rivalry between different procedures and different legal interpretations is what improves the clarity of the law of infringement in the whole of Europe. If you doubt me, observe how rivalry between the various Technical Boards in EPO DG3 has produced a body of caselaw, in the White Book of Established Caselaw, that is unassailable in its logic and so has swept the world. For the most recent example, see the current IPKat interview with the Head of the Patent Office in Australia.
The proponents of the UPC should be ashamed of themselves, sacrificing all this legal certainty and harmonisation at the behest of the multi-national corporate interests, the bulk users of the EPO patent grant service, to rid themselves of the attentions of troublesome SME patent owners. And we were doing quite well enough recently, with engineering disputes litigated in Germany and pharma litigation concentrated in London, and no need to litigate everywhere in order to resolve the dispute.
As Robin Jacob has said “We can learn from the Americans. Watch what they do, and don’t then make the same mistakes”. Introducing this UPC is to make the same mistake as the Americans. And note, for the same reason.
Germany, the home of the SME engineering manufacturer is, with its Constitutional doubts, is belatedly seeing the light. Better late than never.

Arthur Fifty said...

Regrettably, smug and totally misses the point. He'll not change opinions with a speech like that.

Ron said...

While reference has been made to establihshed case law of the EPO, it is clear from numerous decisions that the EPO itself considers that it is only obliged to be bound by "G" decisions. In many decisions it has been pointed out, seemingly mainly to UK authorised representatives, that the EPO relies on a legal code (the EPC) and, unlike Anglo-Saxon legal practice, is not necessarily bound by precedents because non-"G" decisions are not "case law" as per UK practice.

See for example T 0154/04: para 2.

2. .... the legal system of the European Patent Convention gives room for evolution of the jurisprudence (which is thus not "case law" in the strict Anglo-Saxon meaning of the term) and leaves it to the discretion of the boards whether to give reasons in any decision deviating from other decisions or to refer a point of law to the Enlarged Board.

G 0003/08 : reasons:

7.3.1 Development of the law is an essential aspect of its application, .... That is especially true of Anglo-Saxon law, where a decision on an individual case has far greater implications as a precedent than judgments in continental civil law.


T0910/06

2.8 To the extent that the absence in the decision under appeal of any reference to the "established case law" ... is seen in itself by the appellant as a "substantial procedural violation" it must be recalled that unlike some Anglo-Saxon legal systems which are precedent driven, the instances of the European Patent Organisation work within a codified system of law, i.e. the European Patent Convention and its implementing regulations, and are constrained by case law only in the case of decisions handed down by the Enlarged Board of Appeal.

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