Tuesday, 30 October 2012

The Unified Patent Court: here's the AIPPI resolution

PatLit is grateful to Dr. József K. Tálas (Attorney-at-Law and Managing Partner, Sár and Partners Attorneys at Law, Budapest), for drawing its attention to the resolution passed last week at the AIPPI Congress Seoul.  This resolution reads as follows:
Resolution put forward by AIPPI Special Committee Q165 
Unified Patent Court 
1. AIPPI acknowledges that the process of creating a legal framework for a Unified Patent Court, and for the creation and exercise of European Patents having unitary effect, is well advanced. 
2. AIPPI believes that the proposed system will not provide an improved experience for patent users. This is particularly the case if individual patent cases are subject to a third or fourth level of appellate review, with the General Court or the European Court of Justice being asked to consider substantive questions of patent law. AIPPI accepts that the proposed system is within the legal framework of the European Union, and its existence and structure are subject to the review of the European Court of Justice.  It believes, however, that the draft Regulation should be amended so as to make it clear that under the new system the European Court of Justice will have no greater role concerning the grant or exercise of unitary patents than is presently the
case for EP patents.
3. To that end, AIPPI reiterates its support for the deletion of Articles 6-8 from the currently proposed draft Regulation on the Unitary Patent as agreed by the council of the EU on June 28/29, 2012. It is recalled that the content of those articles already appears within the Draft Agreement on the Unified Patent Court and it is proposed that these provisions should apply to unitary patents as well.
4.  AIPPI is of the opinion that it is essential for the acceptance and success of the Unified Patent Court that the original goals of the project which promised judges "with the highest standards of competence and proven experience in the field of patent litigation to ensure expeditious and high quality decisions and thus enhance legal certainty" should not be put at risk.  To that end, it should be ensured that appropriate programs for the selection, training and ongoing support of such judges are put in place as soon as the draft agreement is approved. 
5. AIPPI notes that the Committee for the Rules of Procedure of the proposed Court is presently working to provide a further draft set of procedural rules.  AIPPI resolves that a public consultation period of at least 3 months should be allowed following the publication of this draft before any further steps are taken to adopt any text.
This blogger welcomes the resolution which, he believes, reflects a sentiment which is held by very many practitioners to whom he has spoken, both within AIPPI and beyond it.

1 comment:

Gibus said...

"AIPPI accepts that the proposed system is within the legal framework of the European Union"

This implies that substantive patent law can be subject to a referral for preliminary rulings by the Court of Justice of the European Union (CJEU). Deletion of articles 6-8 is not an option, this has been said many times by academics, European Parliament and Commission's legal services, and even by the United-Kingdom European Scrutiny Committee. See https://www.unitary-patent.eu/content/why-european-council-has-killed-any-workable-eu-patent.

Moreover, to comply with EU Treaties, the unitary patent should be autonomous, i.e. EPC rules used to grant unitary patents are deemed to be included in EU Law, and therefore also reviwable by CJEU. The academic literature is also unanimous here: a patent title of the EU cannot be established, via EU law, without the requirements for this patent to be granted be also included in the same EU law. See Max-Planck Institute analysis on http://www.ip.mpg.de/en/pub/publications/opinions/unitary_patent_package.cfm, or de Visscher, European Unified Patent Court: Another More Realistic and More. Equitable Approach Should be Examined, GRUR Int 2012.

So this AIPPI resolution is self-contradictory. This is not a surprise, when one consider the people who have written it, see https://www.aippi.org/?sel=meetings&cf=seoul2012&view1=Workshops. Notably Thierry Sueur, who in a CEIPI conference in April 2012, has stated "in public that he did not care the least for critical views expressed by academics" (see: Ullrich, Hanns, Select from Within the System: The European Patent with Unitary Effect (October 1, 2012). Geiger, Chr. ed., What Patent Law for Europe?, Paris (Litec), Forthcoming; Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-11. Available at SSRN: http://ssrn.com/abstract=2159672. Or Margot Fröhlinger who has used revolving doors, being the main drafter of the unitary patent package (which gives more powers to the EPO) at the time she was Director of DG Market at European Commission, before joining EPO. And finally Jochen Pagenberg, who has always lobbied for opinions expressed in this AIPPI resolution.

It should be noted that these very people are responsible for the previous failure of a unified patent jurisdiction which has been sanctioned by the CJEU in its Opinion 1/09 because such a project would have "alter[ed] the essential character of the powers conferred on the institutions of the European Union and on the Member States which are indispensable to the preservation of the very nature of European Union law".