European unitary patent: latest news

For the last 2 days, IP Draughts has been attending an excellent 2-day conference, Standards, FRAND, NPEs and Injunctions, jointly run by the law firm Taylor Wessing and by Professor Sir Robin Jacob of the Institute of Brand and Innovation Law of University College London.  Rarely has IP Draughts been to a conference where both speakers and most of the audience were so expert in the subject-matter and so clear in their explanations of law and policy issues.  They represented most if not all of the commercial and legal interests involved, including several industry sectors, trade organisations, private-practice and in-house lawyers (across several disciplines, including IP and competition law) and the judiciary.  Several jurisdictions were represented, including the UK, Germany, Netherlands, France and the USA.

The conference may provide materials for future blog postings, but for now we will focus on one session – the keynote speech of Mr Klaus-Heiner Lehne MEP.  Mr Lehne is Chairman of the Committee on Legal Affairs of the European Parliament, and his committee has responsibility for the unitary patent legislation.  The title of his speech was Formation of the Unified Patent Court.

It was interesting to hear Mr Lehne’s description of the draft legislation, the stage it reached in the legislative process, and how he thought it would work in practice. Apparently, the Cyprus Presidency of the European Council has recently sent papers to the European Parliament that make a proposal to resolve the open question of whether the unitary patent will be subject to the jurisdiction of the European Court of Justice, and that this proposal incorporates the “political proposal” of David Cameron, the British Prime Minister.  It seems that the Parliament’s legal advisers have given a “green light” to this proposal, and have confirmed that the requirements of European law have been fulfilled.  Mr Lehne was hopeful that the “problem will be solved” by the end of this month, and that it would formally go to the Parliament before the Christmas break.

Interesting as this news was, what IP Draughts found most interesting were the questions that were put to Mr Lehne by members of the audience, and his replies.

One of the questioners said there were real concerns within industry about the transparency of the legislative process.  He hoped that there would be a continuing dialogue, eg on directing the judges as to the tests that they should apply when deciding whether to grant injunctions. (At other points in the conference, there was discussion of the risk that poor-quality judicial decision-making in a local or regional court in relation to a unitary patent could have a disastrous commercial effect throughout the whole of the EU (less Spain and Italy if they don’t join in).

Mr Lehne’s response was that the main industry bodies had supported the legislative process, and that most of the key decisions had now been taken.  The main focus of any lobbying at this stage should be limited to the rules of procedure, which were currently being developed by an expert group.

At this point, Sir Robin Jacob pointed out that most of the main industry players in the telecommunications sector were representated at the conference (including both manufacturers and operators), and asked industry representatives in the audience whether they were happy or unhappy with the current proposals.  A large number of hands went up in response to the “unhappy” question; few if any were “happy”.

Mr Lehne responded that the industry lobby – “official” bodies representing industry – all supported the process and agreed with the legislation in principle, even though they may have comments about some of the details.

At this point several other members of the audience intervened.  One said that industry supported the objective, not the proposals.  Another said that none of industry’s concerns had been addressed; that they had tried to explain their concerns over and again without achieving any changes, and that the proposals could “open the floodgates” for actions by non-practising entities.

Another member of the audience said he was a representative of an industry association, and their position had consistently been that they supported the package “provided it leads to a better system than we have today”.  This qualifier was often overlooked by commentators.  As the proposal stands today it is not better.

Mr Lehne reiterated that there was not a chance, at this stage, to change much in the two regulations or in the intergovernmental agreement.  There was still an opportunity to influence the rules of procedure.

At this point, a member of the expert committee deciding those rules spoke to the conference.  He explained how the rules were being developed.  The plan is to produce a final draft by the end of November and then pass it to the politicians to make a final politicial decision within members states.

Sir Robin Jacob pointed out that there had been a meeting of judges in Venice, and that they had come up with some uncontroversial proposals.  They were not, however, concerned with rules of procedure.  Mr Lehne agreed that the proposals were uncontroversial and said that he would mention them to the Cyprus Presidency, which would decide whether they could include them.

Shortly after this point, Sir Robin thanked Mr Lehne for coming into the lion’s den and giving his speech. Mr Lehne then had to leave for a meeting with “an important German lady”.  There was speculation among members of the audience that this was a reference to Chancellor Merkel.

Early in his speech, Mr Lehne had said that the proposed legislation was a political compromise that we should live with, even though it is not perfect.  He didn’t agree that it would lead to an inefficient patent system.

IP Draughts was left feeling that the European political process is completely unsuited to dealing with a technically difficult subject such as patent legislation, and that many people whose professional work brings them into contact with patents seem to be close to the point of rejecting the unitary patent as unfit for purpose.