Horns sounding off against Commission silence over latest proposals

From Axel Horns' excellent IP:JUR weblog comes further news of the future of patent litigation in the European Union. On this subject Axel writes [with PatLit comments in red]:

"With Document 9549/09, on May 08, 2009, the Czech EU Presidency has addressed the EU Permanent Representatives Committee COREPER (Part 1) concerning the preparation of the EU Competitiveness Council of May 28 - 29, 2009 with regard to the project titled Enhancing the patent system in Europe concerning:

* Proposal for a Regulation of the Council on the Community patent, and
* Draft Agreement creating a Unified Patent Litigation System.

At its meeting on December 01, 2008, the EU Competitiveness Council had taken note of a progress report prepared by the French Presidency (Document 16006/08) and instructed the Working Party to continue work on the patent litigation system and the Community patent with a view to finding solutions and reaching agreement in both areas as soon as possible. In line with this Council mandate, the Czech Presidency has convened six Working Party meetings so far, with about equal time having been devoted to the unified patent litigation system and the Community patent [this level of intensity suggests a high level of political commitment to achieving the desired ends].

As regards the Unified Patent Litigation System, the Working Party had discussed the economic aspects of a unified and integrated patent litigation system on the basis of an expert study performed by Professor Dietmar Harhoff on behalf of the Commission. His report highlighted the economic benefits of the unified patent litigation system ...  The ... cost saving exceeds likely operating costs of the future unified patent litigation system by more than five times [This study, at 84 pages, is quite impressive: its calculations also make special provision for the pharma sector].

In its Opinion of November 20, 2008 (Document 15487/08), the Council Legal Service had recommended that the ECJ be consulted on the compatibility of the envisaged Agreement on the European Union Patent Judiciary with the EC Treaty,...  unfortunately this Document has been published only heavily redacted with all of its substantial parts being taken out. ... [the level of transparency at EU can be improved.  Where documents are not available in whole or part, interested parties are left to draw their own conclusions]

Further Document 9549/9 reports that, to the call at the December 2008 Council by a number of Member States for the Commission to propose negotiating directives on a future international agreement establishing a patent litigation system, the Commission has adopted, on March 20, 2009, a Recommendation to the EU Council to authorise the EU Commission to open negotiations for the adoption of an Agreement creating a Unified Patent Litigation System (Document 7927/09). ... it appears that the Commission has published the underlying Document SEC (2009) 330 final on their own website. The EU Commission recommends Negotiation Directives as follows:

* The Agreement shall be concluded by the European Community, its Member States and other Contracting States of the European Patent Convention [while this is obviously the ideal scenario, it is difficult to imagine that a failure to include non-EU EPC contracting states would be a bar to the establishment of the new order].
* The Commission shall ensure that the court structure established in the framework of the Unified Patent Litigation System will have jurisdiction both in relation to European and Community patents [this is presumably non-controversial].
* The Commission shall ensure that the provisions laid down in the draft Agreement and any legal instrument forming part of the draft Agreement comply with the acquis communautaire. This requirement shall be subject to express derogations from the acquis required for the purpose of the creation of a specialist patent court.
* The Commission shall ascertain that the Court of Justice of the European Communities would rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community [while the rulings on these preliminary questions will assist the Commission, it is believed that it will be open to any interested party to challenge them in respect of the validity and interpretations of those acts].
* The Commission shall ensure that the rules of the draft Agreement are consistent with the creation of a Community patent [a wise precaution; again, presumably non-contentious].

In other words, the desired Unified Patent Litigation System is attempted to cover also EPC countries which are not Member States to the EU Treaties like e.g. Turkey.

On April 02, 2009, the EU Commission has presented the above-cited Recommendation to the Working Party, where a large majority of delegations expressed their wish to proceed rapidly with a consultation of the ECJ on the compatibility of the draft Agreement with the EC Treaty. Accordingly, the Czech EU Presidency has drawn up a working document outlining possible issues to be covered in a request for an Opinion under Article 300(6) EC on the compatibility of the draft Agreement with the EC Treaty (Document 9076/09). This Document, which also is not available to the general public, was then discussed on May 08, 2009. According to Document 9549/09, there appears to be a broad consensus among delegations to defer a detailed examination and adoption of the Commission's recommendation until the ECJ has given an opinion on the draft Agreement".

On a personal note, Axel adds

"the EU machinery of institutions in Brussels is worried that there could be some sort of legal problem when creating a Unified Patent Litigation System but they won't tell us where the bug might actually sit. If no papers leak out we'll have to wait until the ECJ has finshed deliberations. I don't have any idea how long this might take".

The perception of Council and the Commission that there is a need to get things right is commendable, but the relative lack of information concerning the legal foundations of the Unified System is a matter for concern.  The interested stake-holders here are not truck drivers, farm labourers or power workers whose adverse reaction to an unpopular proposal might involve demonstrations and the risk of harm to essential services within the community: they are skilled and educated lawyers and patent practitioners, whose experience and understanding might help resolve or clarify the issues that are being kept hidden from them.   The patent litigation community should not have to resort to weblogs such as IP:JUR to gain an understanding of subjects which are kept from us by those whom we pay and empower to work on our behalf.