Thursday, 5 December 2013

New EU patent court structure may (not) be OK: Ingve reveals all

I recently received the following information from Dr Ingve Björn Stjerna (Rechtsanwalt and Certified Specialist for Intellectual Property Law in Simmons & Simmons' Düsseldorf office) which is well worth noting.  Ingve writes:
"I have news re the "unitary patent“.

I recently managed to (finally) get access to large parts of document 15856/11 from the Council, an opinion of its Legal Service on the compatibility of the revised court structure with European law after the Opinion of the Full Court in Case C-1/09 (cf. attachment, for your comparison I attach the previously redacted version as well). As you may remember, it is one of the heavily redacted documents (discussed on the IPKat, eg here); it became famous since access to it was repeatedly refused with the incredible reasoning that, otherwise, it might “affect the ratification process in the Member States willing to participate in the envisaged agreement” and “ultimately delay or put into question the entry into force of the envisaged international agreement” [reasons for withholding information in the EU IP context can be bizarre, such as disturbing the judicial serenity of the CJEU, here]. After my first access request and the related confirmatory application were refused in early 2012, upon my renewed access request, the document has now been released to me (with the exception of one large footnote).

The opinion concludes (cf. para. 44) that the new structure should be compatible with EU law – but that it could also well be that it is not. Now we know why the document was locked away so strictly. Whether this will increase the user’s trust in the system remains to be seen [it seems to this blogger that it can't reduce the level of trust in the system, since there's no trust left to reduce ...].

I have published on my website ( an article titled “Law-making in camera” on the history of the various attempts to get hold of document 15856/11, in case you should find this topic and the background interesting".
Well done, Ingve, we are all in your debt.  It is sad that we appear to have entered an era of secret law-making, amid spurious reasons for resisting access to documents that affect not merely the operational utility but the very legality of a patent system and court structure that will affect us all.

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