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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, November 14, 2007Will The EU Community Patent Get A Final Chance?I'm a bit late to report on a very interesting presentation of Dr. Jens Gaster of GD Internal Market, EU Commission, Brussels, which has been hosted by the Bavarian chapter of Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht (GRUR) on November 05, 2007, in the premises of the German Patent and Trade Mark Office in Munich. The presentation was given in German under the title "Erste Schritte auf dem Weg zu einer umfassenden Reform des Patentsystems in Europa" which means something like "First steps towards a comprehensive reform of the patent system in Europe".In  his presentation, Mr Gaster gave a review of the various attempts made towards a major reform of the EU patent system:
In Mr Gaster's view, the Common political approach dated March 03, 2003 which then later failed spectacularly on the meeting of the EU Council on May 18, 2004, suffered from two major drawbacks:
views that the EPLA as a stand-alone treaty without involvement of the European Community would violate EU law and, hence, is to be treated as a non-starter. However, in the EU Council there appears to emerge some kind of rough political consensus in favour of a new approach which is in fact a blend of the old Commission proposal and the EPLA with much less centralisation in the first instance of infringement litigation proceedings. And, in the light of the newest EU Treaty of Lisbon, majority decisions in this field of law should be possible after ratification thereof. This rough consensus might mature into a full political majority if the French EU Presidency manages to overcome some problems concerning issues like language of proceedings etc. pp.In short, Mr. Gaster believes that the problem of building effective political majorities for a EU-wide patent litigation system can be solved with good luck during the French EU Presidency in 2008. And the EU Community Patent? Nobody seems to believe in realistic chances for this project nowadays, I would be inclined to think. Not so Mr. Gaster. If the problem of a patent court system can be solved, then the EU Community Patent would only be blocked by the obstacle of the question of the language regime. But the auditory of Mr Gaster's presentation might have got the impression that Mr Gaster really thinks it might happen this hurdle be overcome in 2008 because of one might, under the given circumstances, think that the major troublemaker of 2004, the Spanish Government, will be not so lucky next year. Sadly, even under the Lisbon Treaty there is no room for majority decisions in language matters but if the French would press the EU Council in the language question towards a regime where translations of patent claims beyond the three EPC Official languages are for information purposes and legally non-binding, the Spanish might find themselves politically isolated - if they try to block a consensus at all. Hence, if the French Government is very, very lucky in 2008, we might - around Christmas next year - have a far-reaching political consensus or at least some kind of effective political majority not only on a European patent litigation system but also on the foundations of a full EU Community Patent. Or, otherwise, we will by then have lost just another illusion of EU unity. In this context there might even be room for strange theories. One of the readers of this blog wrote in a commentary to my report on the ratification of the London Agreement by France that rumours from within the EPO say that France is going to defer the deposit of the Instrument of Ratification with the German Government. These rumours further say that the delay shall be up to the time when France takes over EU Presidency. And, he detected that news called "London Agreement to enter into force in first half of 2008" under the former link http://www.epo.org/focus/news/2007/20070911.html were removed from news archive of the EPO. He contacted the EPO. They confirmed the removal of the news without further commenting. It should be stressed that such things are rumours, nothing else. But - such rumours fit well into the overall picture of dramatic negotiations to be staged by the French EU Presidency as painted by Mr Gaster in the course of which France might be tempted to utilise the Instrument of Ratification as a dead pledge in the hand of Mr Sarkozy.In the Q&A session after the presentation I asked Mr Gaster for a comment on IBM's proposal to turn the EU Community Patent - within the framework of IBM's recent Soft IP approach - into a new kind of a patent without statutory provisions for injunction relief. Mr. Gaster was fully aware of this approach, argued that IBM had changed their business model recently, but made absolutely clear that in his opinion the EU Commission will not endorse any re-opening of whatsoever discussion on aspects of substantive patent law in order not to put at risk the overall aim of creating a full EU Community Patent. And, finally I asked Mr. Gaster for a comment on the role of patent attorneys before the bodies of the anticipated new European Court system. He had said something to the effect that the EU Commission would follow a political line of protection of acquired possessions for all stakeholders involved, and when I pointed out that squeezing out patent attorneys from revocation proceedings might not be seen as a model of protection of acquired possessions he said something in the direction that in this regard there might be room for political negotiations provided that such issues are put forward adequately. Technorati Tags:  Patents
ldfjbI see that the second instance will find the facts. In other words, EVERY first instance loser will appeal, and the delays at second instance will increase progressively. I see also that a pool of technical experts is to be created, to be at the disposal of the second instance. I conclude that this Proposal from the President is written in ignorance of how patent litigation is conducted in England, and standardises on the worst features of present civil law patent litigation, namely: 1) better get your interlocutory injunctive relief or else you are into a long (10 years maybe) game 2) interlocutory injunctions are unjust. Either they are mistakenly awarded to the owner of an invalid claim, or else they are mistakenly not given, to the owner of a valid and infringed claim 3) in the end, after X years, some technical expert will decide, who has only a vague grasp of the industry on which he is pronouncing. Mr Horns, how much demand is there, out there in industry, for such a system? # posted by : 15 November, 2007 08:23
Can someone translate alide 31/35?: " Es bestehen ferner auch drei Optionen zur Schaffung der Rechtsgrundlage einer solchen integrierten Europäischen Patentgerichtsbarkeit: Das EuG/EuGH-Modell: Grundlagen Art.229a/225a EG & Mini-Vertrag (zur Einbeziehung Europäischer Patente) Das Alicante-Modell: Doppelhut für nationale Richter, rechtliche Fiktion Das Sui-Generis-System: Vertragsoption. Abschluss eines eigenständigen Vertrags / Zusatzprotokolls neben dem EG-Vertrag" I understand that Mr Gaster has in mind a Mini-Treaty between the EU and the EPO.org for option one.
Or, Zoobab, perhaps a mini-treaty between the EU and those States who are EPO members but not in the EU? Thanks for prompting me to view the Gaster slides. Having skimmed through them I see now why France might be holding off depositing its London ratification instrument till it gets what it wants in the horse-trading period of its Presidency in 2nd half 2008. # posted by : 17 November, 2007 09:35
My interpretation of the slide 31 of Gaster is that the European Union don't have competence of jurisdiction to judge European Patents, and that the EU needs a "mini-treaty" similar to Lisbon between its 27 members to extend the competence of the EU to those European Patents. Am I wrong?
Deutschland exportiert sein Modell nach Europa. Ein regionalisiertes Zentralgericht. Die Ratspräsidentschaft spricht sich mit Nachdruck für EU-EPLA aus, obwohl es gar keine Erfahrung in Portugal mit solchen Verfahren gibt. Natürlich ist den anderen Mitgliedstaaten die deutsche Dominanz nicht ganz geheuer. Insbesondere die Spaltung von Nichtigkeitsklage und Verletzungsklage ist in der Praxis höchst problematisch (siehe Papier der deutschen Delegation im Rat). Das dürfte Ihnen ja bekannt sein. Es ist nur verständlich, wenn die Franzosen nun mit dem London Agreement auf Zeit spielen. Jens Gaster sprach schon aus, dass er eine EU-EPLA Lösung erst während der französischen Präsidentschaft erwartet. Zugleich betonte Gaster in Berlin, dass EPO-EPLA - wörtlich - "tot" sei. Der Mini-Vertrag bleibt für EU-EPLA ein interessantes Kernstück, über das sich alle Akteure weitgehend ausschweigen. # posted by : 20 November, 2007 11:41Post a Comment
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