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Monday, May 19, 2008

Draft Agreement on the European Union Patent Judiciary.

The EU Council has published

Document 9124/08 issued by the Slovenian EU Presidency and addressing the

Working Party on Intellectual Property (Patents). The title of the Document is Draft Agreement on the European Union Patent Judiciary.

The revised Presidency working document contains a Draft Agreement on the European Union Patent Judiciary for discussion at the meetings of the Intellectual Property (Patents) Working Party on 28 May and 11 June 2008. The revised version takes account of the discussions in the Working Party on 2, 8 and 25 April 2008 as well as of comments and observations received from stakeholders. Furthermore, it also comprises two lists of issues to be included respectively in the Statute of the European Union Patent Judiciary and in the Rules of Procedure, which need to be developed at a later stage.

Of particular insterest is the Draft wording of Article 28 on representation:

"[...] Article 28
Representation

(1) The parties shall be represented by lawyers authorized to practise before a court of a Contracting Party who may be assisted by a European Patent Attorney, who is a national of a Contracting Party entitled to act as professional representative before the European Patent Office (hereafter: European Patent Attorney), and/or by patent attorneys with proven patent litigation experience.

(2) Notwithstanding paragraph 1, European Patent Attorneys and patent attorneys with proven patent litigation experience who are in possession of a European Union Litigation Certificate may represent the parties in actions for revocation of a patent before the central division.

(3) Representatives of the parties and their assistants shall enjoy the rights and immunities necessary to the independent exercise of their duties.

(4) Representatives of the parties and their assistants shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know. [...]"

Paragraph 1 appears to resemble current German practice in litigation proceedings but paragraph (2) clearly falls back behind: Under the current rules valid in Germany, every German patent attorney ("Patentanwalt") is entitled to represent the parties in actions for revocation of a patent before the Federal Patents Court ("Bundespatentgericht"), no questions asked for additional Certificates.

And: What does it mean to misrepresent cases or facts before the Court either knowingly or with good reasons to know? If we have any suspicion that our client might have told us not the full truth, will be be obliged to cease representation?

The preliminary list of topics to be included in the Rules of Procedure of the European Union Patent Court comprises, inter alia,

Detailed language arrangements
Requirements for representatives
Requirements for European Patent Attorneys (including rules on EU patent litigation certificates or proof of patent litigation experience)
Privileges, immunities and facilities of representatives
Status of parties' representatives
Misrepresentation
Exclusion from proceedings
Use of electronic procedures
Electronic filing of submissions and evidence
Electronic communication
Serving of documents by electronic means

Hence, it looks as if the experts are very busy, on a more technical level, to hammer out Draft texts for the planned EU-wide patent litigation system. But never forget - the second half of 2008 will show us as to whether or not all this will become reality one day.

As it was to be expected, not everybody is enthusiasic over such plans. From the other end of the spectrum, see

this report authored by

Mr Ciarán O'Riordan, Member of

FSFE. It is a pity that he did not bother to disclose the whereabouts of that Working breakfast on Community Patent on which he reports. BTW,

FFII appears to be quite dead, at least concerning this matter.

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Monday, May 12, 2008

Enhancing The Patent System in Europe: Progress Achived So Far.

There is a new

Document 8992/08 issued by Slovenian EU Presidency to Permanent Representatives Committee (Part 1) on May 08, 2008, concerning potential enhancemet the patent system in Europe. Some of the key points of that Document quoted below read as follows:

Considerable progress has been achieved on both the patent litigation system and the Community patent, thanks to the positive and constructive attitude shown by delegations throughout the discussions. While some delegations would prefer to keep progress on patent litigation separate from that on the Community patent, others are of the opinion that consensus should be reached on both areas simultaneously. Therefore it would seem that a future political agreement would be difficult to achieve in the absence of a "package" deal covering both the patent litigation system and the Community patent. Accordingly, the Presidency sought to advance work on both in parallel.
As regards the patent litigation system, while there appears to be broad agreement on the overall structure, there are also issues which need to be further discussed in more technical detail. These include, in particular, the composition of panels at first instance, the language of proceedings, the jurisdiction for counterclaims for invalidity, transitional arrangements, the modalities for granting the Court of Justice the power to review judgments handed down by the appeal instance, and the funding of the system. The essence of this progress is reflected in working document 9124/08.
In response to a request by the Presidency, the Council Legal Service presented orally to the Working Party on 8 April 2008 its preliminary views on the type of legal instrument suitable for creating the envisaged patent litigation system. It was noted that for an international agreement to be concluded by the Community and the Member States (as well as third countries) it would be advisable to request the opinion of the Court of Justice.
As regards the Community patent, discussions focused on the two main outstanding issues, i.e. translation arrangements and the distribution of revenue from renewal fees. It is felt that an agreement on these two issues would considerably facilitate an overall agreement on the Community patent Regulation. There was broad agreement that in the interest of the users of the patent system, in particular SMEs, the cost of the Community patent must be affordable.
As regards the Community patent, discussions focused on the two main outstanding issues, i.e. translation arrangements and the distribution of revenue from renewal fees. It is felt that an agreement on these two issues would considerably facilitate an overall agreement on the Community patent Regulation. There was broad agreement that in the interest of the users of the patent system, in particular SMEs, the cost of the Community patent must be affordable.
As regards the Community patent, discussions focused on the two main outstanding issues, i.e. translation arrangements and the distribution of revenue from renewal fees. It is felt that an agreement on these two issues would considerably facilitate an overall agreement on the Community patent Regulation. There was broad agreement that in the interest of the users of the patent system, in particular SMEs, the cost of the Community patent must be affordable.

Well, it appears to me that one of the crucial points lies behind that quite pale wording according to which "While some delegations would prefer to keep progress on patent litigation separate from that on the Community patent, others are of the opinion that consensus should be reached on both areas simultaneously". From private sources who recently had attended the European Patent Forum event in Ljubljana sources I have been told that it seemed also that there is quite some opposition to that Council proposal for a European Patent Litigation solution and Community Patent. Despite the quite optimistic bulletins disseminated by the EU Presidency, success should not be taken for granted. Most probably, later this year the French EU Presidency will face a hard job to press that matter trough.

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Thursday, May 08, 2008

"Permafrost" Of Pending Applications - Alison Brimelow: "I Am Coming To The Conclusion That The Backlog Will Not Be Mastered."

Sometimes it needs to have a full-time journalist conducting an interview with a key figure in order to to help on the blogosphere analysing certain facets of the reality of the European patent system. Today, well-known Mr Joff Wild from

IAM Magazine

writes in his

Blog:

"[...] In an exclusive interview with IAM, which took place in the Slovenian capital Ljubljana, venue for this year's European Patent Forum and European Inventor of the Year ceremony, EPO president Alison Brimelow said: 'I am coming to the conclusion that the backlog will not be mastered.' It is now time, she continued, to think about what must be done to ensure that the patent system can function adequately in this new environment. 'There are no silver bullets but there are a range of things that we could do - some of which will be more effective than others.' [...]"

"The backlog will not be mastered" - Ouch.

Also present at the interview was Mr McGinley, the Controller of the EPO. According to Mr Wild's Blog posting, Mr McGinley suggested that one way of looking at the backlog issue is that all the world's major offices now have a permafrost of pending applications. This, McGinley said, created real uncertainty. The US is already at a point where there are one million pending applications and Europe is forecast to be there within five years.

To me all this appears to be result of a grim reality check conducted by Ms Brimelow during herfirst year in office. Such exercises do not come to me as a surprise - they rather appear to be typical for this EPO President. I like her fresh thinking. But perhaps the crisis of the patent system is much deeper than thought by many, in particular by most of the patent profesionals. Is all this talk of "permafrost" and the phrase "The backlog will not be mastered" anything else than something like an announcement of a protracted bankruptcy of the global patent system as we know it today?

But what to do now? Mr Wild heavily stresses that it is important to make clear that Ms Brimelow, Mr McGinley and other members of the office's senior management are still in the very early stages of exploring what might be done. But Mr Wild has no doubt that there is some very deep thinking going on. in the interview, Ms Brimelow hinted that there are a number of developments that are leading to issues being explored in a way that would not have been possible two years ago. One of these, she said, is mutual recognition.

Mutual recognition - on the stage of the

Trilateral Co-operation this could mean that, under some formal conditions, that a patent granted by EPO immediately would have legal effect in, say, the US. So far - well. But - of course: Any realistic scenario also would comprise the other way round: A patent granted by the US-PTO should also, under some formal conditions, have legal effect in Europe. Taking aside current differences in substantial patent law of the US and EU (which would have to be harmonised anyway before any recognition solution could be seriously considered) - is there really a chance in any foreseeable future that such mutual recognition would be accepted by the respective societies involved?

I think that it is most important that such developments will be discussed in an open manner. Hence, I appreciate that Ms Brimelow has given early indications. But what will follow in the coming years should not be an exercise in secret diplomacy, in the end presenting a revolutionising set of perhaps drastic measures as a result of widely intransparent negotiations. Doing so might seriously hamper much needed broad acceptance of any big solution by the general public.

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