Monday, 1 June 2015

Edging towards the new regime for Europe: a report on the EPLIT Meeting

PatLit is indebted to patent litigator Chris Ryan for his account of last week's meeting of the European Patent Litigators Association (EPLIT) -- this being its second annual meeting, which took place in the quietly efficient conference centre of the Hotel Jardins du Marais, Paris. Writes Chris:
The Association has, on the latest review of an upward curve of interest, 168 members from 17 countries.   I didn’t count the delegates or conduct a statistical survey of the geographic mix but I estimate that there were 60-plus people there and I identified individuals from at least 9 different countries. 
More effective reporters than this one would no doubt provide readers with a full summary of each presentation, including the progress reported by each of the Association’s Working Groups (Substantive Law, Qualifications, Costs, Privilege, Code of Conduct and Education/Training).  I will do no more than record, with source accreditation, the various “take home” points I picked up. 
A positive tone to the meeting was encouraged by:

  • The recent dismissal by the CJEU of Spain’s challenge to the legality of the Unitary Patent Regulation;
  •  The failure of a similar challenge in the Belgian constitutional court;
  •  A statement by Margot Fröhlinger (Principal Director at the EPO) that the Italian government had decided that, subject to the approval of its parliament, it would now ratify the UPC Agreement; and
  •  The apparent intention of the EPO (again according to Margot Fröhlinger) to press ahead with a planned commencement date in 2016, without regard to the UK’s planned referendum on continued EU membership. 
Patent Litigators Certificate 
The next iteration of the Rules on the European Patent Litigation Certificate will provide that non-profit organisations (i.e. not only universities) will be entitled to seek course accreditation.  This was a point of criticism of the last draft which was raised by CIPA’s Chris Mercer, in his capacity as Chair of the Working Group on Qualification, and subsequently clarified by Bernadette Makoski  from the German Ministry of Justice during her review of “Development towards a litigators certificate for European Patent Attorneys. 
It is not just senior members of the UK Patent Attorney profession who worry that the “grandfathering” route to qualify to represent clients before the Unified Patent Court is currently unclear and potentially unfair – delegates from other countries (including Germany) are also concerned.  They received a sympathetic acknowledgement from Bernadette Makoski but, so far as I could detect, no unequivocal assurance that the final version of the rules will include them among those qualified to represent clients. 
Bernadette did indicate that the approach likely to be adopted towards grandfathered qualification through previous course attendance is to be inclusive, in respect of qualifying courses (I think that means the list in the last draft will increase), but to give those wanting to make use of the provision a strictly enforced 12 months, and no more, to submit an application.  The right to represent clients enjoyed by those qualifying by this route will be permanent – the provision is not transitional in that sense. 
The rules are expected to be finalised in the course of this summer (Bernadette again). 
Renewal Fees 
There was an awful lot of detail (from both Eugen Popp of Meissner Bolte and Margot Fröhlinger ) on the recently proposed level of Unitary Patent renewal fees and the complex financial modelling that lies behind the current proposal to align them with the renewal cost of a European Patent designating the four or five most popular national jurisdictions.  My strongest  recollection of the day was the weariness in the voice of Margot Fröhlinger when faced with the prospect of re-calibrated  financial modelling to reflect Italy’s  change of heart and consequent replacement of the Netherlands as the fourth most popular country for European Patent designation.  A final decision on this is expected within the (relatively wide) window of “end of June or in the fall”. 
Value-based Court Fees 
New to me (but maybe not others) was the explanation by Eugen Popp that if the UPC approach to valuing claims were to follow the approach that is well established in the German Courts, the pattern would be something like 
     * 80% based on an evaluation of the “cease and desist” element, taking account of:
§  Remaining life of the patent in suit;
§  Patent proprietor’s turnover, size and position in the market;
§  Magnitude of harmfulness of the infringing activity;
§  Potential loss resulting from the claim;
     * 20% based on the available financial remedies. 
More understandable was the importance of Rules of Procedure requiring the exercise to be carried out by the court early in the process and well before either side could seek to influence the conduct of the valuation exercise on the basis of the way the court seemed to be going. 
Recoverable Costs 
While those used to high costs recovery (UK and Germany) were fairly relaxed about the recent proposals, others found the upper range alarming both in terms of the level and the adviser’s difficulty in evaluating a client’s cost risk within the €3M top-level cap.
Two minutes from me on the true horror of the detailed cost assessment procedures for courts in England and Wales did nothing to allay anyone’s fears about the court’s ability to come to the assistance of a client who has lost a high value claim. 
Is it ironic that, as English procedures move to address the concerns of clients about costs risk that are both large and difficult to assess in advance (at least in the IPEC regime), the UPC recoverable cost proposals seem to be edging in the opposite direction. 
 Training for Technically Qualified Judges 
Xavier Seuba from CEIPI at the Université de Strasbourg demonstrated that, in developing the soon-to-be-launched course for technical judges, a very careful analysis had been undertaken of the challenge of testing technical/scientific data in litigation and the precise nature of the role of a technical judge, as distinct from that of a court appointed expert (or others likely to have an impact on this aspect of patent trials).  Not surprisingly, against that background, the course outline Xavier disclosed was impressive and the support for the course by both judges (as tutors) and potential trainees reportedly at a high level. 
Rules of Procedure 
18th draft expected during or after the summer (another fairly wide window) – this again from Margot Fröhlinger. 
 And finally… 
… after all the legal, procedural and political debate came a breath of fresh air when Max Brunner, from the French Ministry of Justice, gave a fascinating presentation on the project planning for the establishment of the Central Division in France.   He included the chilling opinion that, based on long experience of managing projects, this was the most difficult one he had faced.  The difficulties were in part due to the disbursed nature of the decision-making and, more particularly, the uncertainties – “project management without any reliable kick off date” he called it.  And without any idea of how many cases would arise – how many filings and how many opt outs: what would the “litigation rate” be:  and how many cases would end up in the local court or the central division in Paris. 
Against the background of those difficulties M Brunner presented a hugely impressive (to this project non-manager) of the steps being taken in respect of premises, facilities, support staff planning and IT development.  There was a passing suggestion on this last topic that the Paris team may not have been totally convinced by some of the security and user authentication features of the system presented by the UK IPO team during a recent workshop exercise. 
The conference ended with a discussion by a panel of industry representatives.  But, bearing in mind the circumstances in which the late Ruth Rendell lost her first job as a reporter on a local paper, I won’t include anything arising out of it in this report.
Thanks so much, Chris, for this detailed and helpful report!

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