Friday, 14 October 2011

Unitary Patent: the Spanish view

In an interview published last week, Mr. Alberto Casado, Director of the Spanish Patent and Trademark Office, has insisted in the arguments for the Spanish opposition:
“The Spanish position is favorable to have a Community patent and a European unified jurisdiction for patents. Therefore, we do not obstacle moving towards a single legal instrument; what is basically making it difficult for us is the model that the Commission and most member states are adopting and, especially, the fact which discriminates the Spanish language, both at the Community patent and the jurisdiction”.
Mr. Casado criticizes that the Unified Patent Court, as actually designed, “contemplates the possibility of technical judges who are not legally trained”. Appointing technical judges has recently been questioned by the European Patent Lawyers' Association in its Resolution on the Draft Agreement 13751/11 of September 2, 2011, posted two weeks ago in PatLit (here).

Furthermore, Mr. Casado claims that “appointing an specific judge for an specific action would go against our judicial security Constitutional principle”.

Full text, in Spanish, can be read here


Anonymous said...

The interview makes depressing reading for a Spaniard genuinely concerned about the future of patent law and, more generally, industry in Spain.
Mr. Casado is utterly disingenuous in his criticism of the proposed participation of technically qualified judges in the judge panels. Not only does Art. 10(3) of the proposal specify that they should have proven knowledge in civil law and procedure relevant to patent law, but, certainly, legal certainty is rather enhanced in patent cases if there is somebody in the judge panel who is actually able to understand what the patent is about, rather than to defer to the not-necessarily-qualified opinion of an outside "technical expert", as so often happens in Spain and other countries.
This is, however, only indicative of a broader dismissal of technically qualified patent professionals that is all too apparent in his answer to the question of why there are not enough IP professionals in Andalusia. In his answer, he exclusively refers to lawyers, but overlooks entirely the biggest problem in Andalusia and the rest of Spain, which is the lack of technically qualified IP agents and European patent attorneys.
This legal snobbery is all the more annoying in view of the fact that Spain is one of the few European countries that has not yet been bothered to set an examination for access to the bar.

Steve Peers said...

I wonder if the Spanish government's position might change if the opposition party wins the forthcoming elections - as seems highly likely. Is anyone familiar with their position on this issue?

Anonymous said...

Mr. Peers,

Mr. Selas has already partially answered your question in his later post. In my opinion (but I could be wrong), the Spanish Popular Party will take an even harder line than the current government in the language question. Indeed, several conservative commentators and politicians have openly accused the current government of being "too soft" in this matter. The only factors which could change the position of the Popular Party would be if it fails to obtain an absolute majority and has to rely on support from the Catalan conservative nationalists of CiU (but this is looking very unlikely at the moment), or if Italy changes sides.

In my opinion, a change of government in Italy is much more likely to change the situation. In the debates at the European Parliament, a number of Italian center-left MEPs were supportive of the unitary patent proposal.