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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, November 20, 2007EU Presidency: EU Patent Jurisdictional System And Community Patent Should Form A Package.The EU council has published Document 15162/07 originating from the Portuguese EU Presidency and addressed to the EU Council (Competitiveness) the purpose of which is to inform the Competitiveness Council of the progress achieved so far in discussions on the single patent litigation system as a basis for an initial exchange of views at Council level:
"[...] Once further consensus has been reached on the jurisdictional system, solutions for the Community patent will be explored since a number of Member States consider that the jurisdictional system and the Community patent should form a package. [...]"This fully supports an important aspect of  Mr Gaster's recent presentation. However, currently only a number of Member States, i.e. not all of the EU Member States, are prepared to follow. Hence, it might well be that the project of establishing a Community Patent might fail because of some EU Member States prefer to content oneself with some sort of a European jurisdictional system only. Anyway, the EU Council (Competitiveness) now is invited to take note of this progress report at its forthcoming session on 22-23 November 2007 and to instruct its preparatory bodies to:
here.Technorati Tags:  Patents
It is actually a complicated EU defense against a hostile takeover from the EPO lobby: a) EPO lobbying for EPLA to get rid off EU community patent and EU Patent judiciary discussions b) all parties formatted on EPLA, EPLA, EPLA with community patent arguments. c) It was ignored that EPLA couldn't work under EU law. Now, at the end of discussions EPLA is "dead"(Gaster). d) The Commission put forward a compromise for an EU-EPLA, furthered by more tangible work of the Pt presidency. e) EU-EPLA won't work under the f) get back to the original EU models and do some "judges academy" stuff. # posted by : 20 November, 2007 15:42
We all know that Axel is a patent attorney. The Second Venice Resolution is explicitly referred to in the new Portugiese paper under "Rules of procedure". The Resolution states: "European Patent Counsel: .... We (European Patent judges) believe that persons qualified to be registered should be attorneys at law who are fully entitled to represent parties in ordinary civil proceedings in the courts of first instance of the convention states." Until now the Second Venice Resolution was a wish by Judges. Now it is made reference in an official EU paper. Does this mean that the EU wishes European patent attorneys to be kicked out of nullity proceedings? If one follows the most recent decision of the CFI in respect to trademarks, patent attorneys are even not allowed to speak when supervised by an attorney at law before the court body. This can not be serious. Deciding on technical matters without giving technically educated persons the right to speak or write? Furthermore, today's figures show that most of the infringment cases are made in Germany and are usually accompanied by separate nullity proceedings (German separate system so far), most of them represented by patent attorneys. Thus, today's situation is that patent attorneys are involved in patent litigation Europe-wide to a large extent. You might recognize that I am a patent attorney as well. And I know how difficult it is for me to fully understand nullity issues even although I have a well-founded technical background on the respective technical field. I further know, that it is even more difficult for "only" legally educated laywers to understand the matter (sorry for the only, you might understand what I want to say). I doubt, whether such a system excluding technicians helps to find the truth. # posted by : 20 November, 2007 17:53
@Rainer: Mr Gaster had, as far as I have understood him, hinted that the EU Commission is by no means in itself determined to squeeze out patent attorneys from fields of activity which can be considered as aquired possessions, e.g. German patent attorneys acting (theoretically) on a stand-alone basis before the Bundespatentgericht in nullity cases (in many cases of such kind a lawyer is present) or patent attorneys acting under supervision of a general lawyer in German infringement proceedings. However, if the only input with significant political impact originates from judges who - for whatever reasons - prefer to deal exclusively with lawyers, then the EU Commission might come into a situation where they hardly can justify any other solution than that as proposed by the Venice resolution. The various national Institutes of Patent Attorneys throughout the EU as well as epi and FICPI are dealing with this matter. Their contributions to this debate are most valuable. However, frankly spoken, I am not sure as to whether or not I should be absolutely confident that the activities of those bodies will be, taken alone, sufficient in order to overcome that problem. Perhaps a much broader discussion is needed.
@Rebentisch: What do you mean with EPO: The European Patent *Office* or the European Patent *Organisation*? As far as I understand the mechanics of power around the European Patent *Office*, the upper echelons of the European Patent *Office*, i.e. the President and other top personnel, do have only limited influence on large-scale political discussions and decisions. You should not forget that the EPC primarily establishes a European Patent *Organisation*, the sole purpose of which is to run the European Patent *Office*. But the European Patent *Organisation* is controlled by its Administrative Council (AC). The AC is staffed by the national Governments of the EPC Member States which are in their vast majority EU Member States or bound by EFTA. If Member States decide to send heads of national Patent Offices, they are nevertheless bound by directives from their respective national Government. Mr Gaster pointed out in his presentation that since around beginning of this century there is a standing practice to have co-ordination consultations of EU Member States on sub-ministerial level before AC meetings. Hence, the reality is not as simple as, on the one side, an evil European Patent *Office*, and on the other side, a cherubic EU. Perhaps all that resembles more something like a soliloquising congregation of representatives of national Governments of EU Member States in a Babylonian multitude of languages and concepts: If the AC and bodies of the EU talk to each other, both sides of that communication process somehow do depend on political strategies of national Governments. And, under the current system of EU/EC treaties, the powers of the European Parliament are limited. Anyway, the national Governments (and, in particular, the competent ministerial departments thereof) are the "prime movers" in that processes: If s sufficient strong group of national Governments of EU Member States were untied in their desire to have this or that solution for some European Patent policy then they could easily enforce such a solution by: - voting accordingly in the EU Council, and, at the same time, - voting accordingly in the EPC AC.
@Mr Horn thanks a lot for your highly informative blog. As regards the right of representing parties before the future European patent courts, you may be interested by following the on-going developments in France regarding the putative merger between the large profession of "avocats" (attorneys at law) and the small profession of "conseils en propriété industrielle" (patent and trademark attorneys). recent position of French IP attorneys made public here http://www.cncpi.fr/fr2.htm last public position of French attorneys at law http://www.cnb.avocat.fr/PDF/2007-03-16_cpi.pdf The French ministry of justice (Rachida Dati) gave official support for a merger between the two professions (under terms to be determined) in late september 07. IP-specialized attorneys at law oppose such a merger, but it seems that the public authorities favor it. If such a merger occurs, it seems that all private practice French patent attorneys will be entitled to represent parties before European patent courts, since they will also be attorneys at law. In my view, the main issue is that few people will be ready to pass all the exams required. # posted by : 20 November, 2007 21:48Post a Comment
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