As we have previously reported1, the proposal for a unified patent litigation system4 for the EU in its current form has met with concern from judges, practitioners and industry alike. Many commentators, including us, have stated the system as a whole has not been thought through properly. Consequently, it risks not serving its purpose of providing a cost-effective, yet high quality, forum for patent litigation in Europe.
When we last reported on the status of the unified patent system, the sense was that the institutions of the EU, notably the Commission and the (then) Polish Presidency of the Council, were hell bent on obtaining agreement on the legislative package by the end of 2011, and that the EU’s “political will” to secure an agreement without further delay meant the concerns over the system were falling on deaf ears.
Indeed, the Polish Presidency had signalled its intention to organise an initialing ceremony in Warsaw for the end of December where the text of the agreement on the unified court would be finalised.
So, where are now?
The short answer is that the initialing ceremony has not happened. The message from the Council was that the failure to sign off on the legislative package in December was a result of the Member States having failed to agree on the location of the Central Division of the unified court - what has been called in a Council statement “the last outstanding issue in the patent package”. The Council also reported on the commitment of the Member States to reaching a final agreement on this point “by June 2012 at the latest”3.
Whilst the location of the Central Division is, of course, an important consideration, it is rather bewildering that the substantive concerns voiced by the actual users of the patent system remain unacknowledged (publicly, at least) by the EU institutions having conduct of this most important initiative.
It does seem, however, that the UK Parliament is sitting up and taking notice of the current state of affairs. The European Scrutiny Committee of our House of Commons opened an inquiry into the unified patent court in January of this year.
“The Scrutiny Committee assesses the legal and/or political importance of draft EU legislation… Ministers should not vote in the Council of Ministers on proposals which the Committee has not cleared or which are awaiting debate.”
The Scrutiny Committee has held two evidence sessions to date, first seeking the views of representatives of the legal profession in Europe on the current proposals, and then requesting that the UK Government explain its position.
The inquiry is ongoing, but it appears to us that the Scrutiny Committee is asking itself the right question – how can it be that the only outstanding issue, according to the Council, is the location of the Central Division, when so many important concerns over the substance of the proposed system seemingly remain unresolved?
Through its evidence to the Scrutiny Committee, it does appear that the UK Government is engaging with the (now Danish) Presidency of the Council on some of the most pressing concerns with the proposed system, namely the possibility of the bifurcation of infringement and validity proceedings, and the inclusion in the EU Regulation on the unitary patent right of substantive provisions regarding infringement (and the spectre of the EU Court of Justice being asked to interpret those provisions).
Furthermore, the indications from the Scrutiny Committee’s minutes are that the UK Government is taking a position whereby it will not sign the unified patent court agreement until the Rules of Procedure for the system have been (close to) finalised. This, if maintained, is a welcome stance from the UK Government. Given the apparent refusal of the EU legislature to rethink the overall architecture of the unified system4, it seems that it may well fall on the Rules of Procedure to ensure that the worst of the potential inequities of the proposed system are, at least to some degree, mitigated.
Finally, the UK Government has suggested, in its evidence to the Scrutiny Committee, that the June 2012 deadline mentioned above for sign-off on the legislative package might slip.
In conclusion, we wait to see what progress can be made on the draft Rules of Procedure for the unified court and hope that, now the Council’s self-imposed deadline of December 2011 for sign-off on the package has passed, a more circumspect approach towards the European patent system will now be taken.