The title is itself an eloquent summary of the author's view of the situation. In the concluding passage of the final part of his piece, headed "Consequences and remedies?", he writes (with PatLit's emphases added in red):
"3. No segregation of unitary patent and court system
It would certainly require some time, negotiations, expert discussions and perhaps even a user survey before the new goals will become clear. It would therefore be a dangerous mistake to segregate now the legal instruments for the Unitary patent from the discussion of the court system. If one talks to users one will hear that they will not file one single Unitary patent as long as there is no court system in place. The above considerations show that it may still be a long way with a high probability of failure. Therefore, it would certainly not be wise to risk another defeat for a project as important as this.
It remains that the CJ obviously has closed the door for joining non-EU countries in the patent litigation system as it has been discussed so far. It has also expressly excluded EPC patents from its Opinion. Therefore the solution of an international court for EPC patents – at least as a first step for a common international patent court in Europe – comes again into focus, since the serious political and legal restrictions of the EU rules would not apply.
Users should therefore urge the Commission and the member states not to hastily conclude the Enhanced Cooperation agreement without having found an acceptable solution for the litigation system . In this context it should be examined in particular how the rules envisaged under the Unitary patent could prevent the result that substantive patent law, not only as far it is now contained in the EPC, would become part of the EU legal order so that patentability requirements, questions of patent scope etc. would be interpreted in the future by judges without patent experience. Also this question is a serious concern of users and requires a thorough debate before any project can be properly evaluated by industry. It is difficult to accept if under an international court a body of generally accepted EPC case law is further developed which a decade later is threatened to be overturned by a court system which is intended to create its own substantive patent law. Such strategic and organisational questions must also be touched now so that the overall aim is not lost out of sight".
6 comments:
Mr. Pagenberg's paper is a clear and well-worked-through summary of the CJEU opinion. Thank you for posting it here. I agree whole-heartedly with the paper's primary conclusions.
As Jochen Pagenberg intimates, it also seems to me that a new project aiming to achieve consensus for the foundation of (an) international court(s) with post-grant jurisdiction for European Patents granted under the EPC would now (and for the foreseeable future) be the most likely route to lead towards a system capable of providing real-world support to boost economic growth in Europe, through supporting the interests and needs of technology-innovators in Europe.
Is there any chance of seeing the convening of a new European working party on litigation, with a mandate to explore this option, in the near(ish) future?
Why do people who are not users always have to speak in the name of users. It is so tiresome.
"If one talks to users one will hear that they will not file one single Unitary patent as long as there is no court system in place." This simply is not true in all its generality. Most people from industry would consider filing unitary patents without waiting for a European court, which may never come.
Let Pagenberg speak for Pagenberg and users for themselves, please.
This being said, Pagenberg is certainly a person to be heard.
Taking up from that last comment the theme of "user" I see the biggest users of a supra-national patent litigation regime in Europe as the law firms that will be conducting the actions (the more of them the better).
Mr Pagenberg is surely not one of them, but many partners in law firms have understandable difficulty in disentangling the interests of clients from those of the firm. Perhaps that is why one otherwise hears pronouncements from senior partners of law firms with a degree of scepticism.
The problem with Mr. Pagenberg's argument is twofold: a) although the Court of Justice did not comment on whether an international court with jurisdiction solely over European patents could be created without infringing EU law, it must follow that it could not be, because such a court would be bound to deal with EU law issues such as free movement of goods, competition, etc and the basic logic of the judgment is that *any* transfer of jurisdiction from national courts to an international court as regards EU law matters is an infringement of EU law; and b) the EU has exclusive competence over matters relating to civil jurisdiction, so would either have to participate in or authorize its Member States to participate in some version of the EPLA. Last time the issue was raised there was insufficient support for this among the Member States, according to the Commission.
While it is possible for problem (b) to be solved if there is a change of political will, problem (a) cannot be solved without an amendment to the Treaties - and there is not much chance of that.
I get the strong impression that Mr. Papenburg wants the Court of Justice to have nothing to do with patent law whatsoever, because of his perception of the incompetence of its judges as regards patent law. But since those judges (not suprisingly or unreasonably) insist on having the final word as regards EU law, their involvement is inevitable once there is some EU legislation dealing with patents.
So it would be more straightforward for Mr. Pagenberg to object to having any EU patent legislation at all. Then again, if he is correct to distrust the EU judges, there is no harm as long as the EU system is optional, because users of the patent system will presumably share his distrust.
EU-law-Professor Peers states: "...although the Court of Justice did not comment on whether an international court with jurisdiction solely over European patents could be created without infringing EU law, it must follow that it could not be..."
How can something be genuinely believed to oblgatorily follow a stated non-comment?!
In fact, the CJEU states in their opinion that: "...the Court [i.e. CJEU] has no jurisdiction to rule on direct actions between individuals in the field of patents..."
& that the problem the CJEU sees with the EEUPC is that it is "... to be called upon to interpret and apply not only the provisions of that [i.e. the EEUPC] agreement but also the future regulation on the Community patent and other instruments of European Union law...".
An international court with post-grant jurisdiction for European Patents granted under the EPC (and NO jurisdiction for any future Community patents) would NOT be thus called upon, and thus the CJEU themselves would appear, in principal, not to have any insurmountable remaining problem with such an approach - as long as there is some route available
via the national courts to the CJEU for matters relating to EU Member States (and/or EU patent applicants).
Finally, the CJEU, in its opinion 1/09, also underlines that none of the TFEU Articles raised in prior legal arguments/queries about the EEUPC (by various EU member states) conflict with the creation of a patent court, per se - in particular that A. 262 is "not the only conceivable way of creating a unified patent court" and that A. 344 relates only to provisions for EU Member States to submit disputes regarding Treaty interpretation, whereas, by contrast, the jurisdiction of a patent court "relates only to disputes between individuals in the field of patents."
Prof. Peers' 'unsolvable problem (a)' would thus appear to be an artificial construct which the CJEU does not appear share.
'Anonymous' clearly did not read my comment. As I said, 'it must follow that it could not be [ie an international court could not be given jurisdition to rule on European patents alone], **because such a court would be bound to deal with EU law issues such as free movement of goods, competition, etc and the basic logic of the judgment is that *any* transfer of jurisdiction from national courts to an international court as regards EU law matters is an infringement of EU law**'
It is quite obvious that the words in double asterisks indicate why such a court could not have such jurisdiction, although perhaps I should have added the words 'by analogy' for the sake of clarity.
The idea that it might be acceptable to have "some" route to the Court of Justice regarding EU law issues is not good enough - the Court of Justice quite clearly insists in Opinion 1/2009 upon *only* the ordinary route though national courts, or through a common court created by Member States (and only Member States). Since an EPC-only international patent court, if it involved the participation of non-EU Member States and had exclusive jurisdiction of some sort (ie the EPLA proposal), would necessarily touch on EU law matters, it must follow from Opinion 1/2009 BY ANALOGY that this would infringe EU constitutional law - unless there is a Treaty amendment.
This leaves aside the issues of exclusive EU external competence relating to civil jurisdiction et al, which could only be resolved if the Commission proposed and the Council accepted a waiver of such competence - which hardly looks likely. In fact, the Commission's new non-paper put to the Council this week is entirely consistent with my analysis. (I have no links to the Commission).
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