 |
| The Houses of Parliament ready for some evidence on the unified patent proposals |
“This is a very important and very technical question which is before the Committee and I ought to add that we’ve received evidence from the following organizations – EPLAW, Henry Carr QC, Federation of British Industry, Charted Institute of Patent Attorneys, IP Federation (here), two letters with attachments from the Minister Baroness Wilcox and also finally from the Intellectual Property Lawyers Association. We also had it from the AIPPI... I would also mention that the evidence so far appears to be broadly consistent and very much in line with that which has been given by Henry Carr QC and the Chartered Institute of Patent Attorneys. This is a hugely important question, I repeat, and is something that we want to get right. I have to add that the Committee has not received any expert evidence whatsoever which supports the agreement on the UPC as drafted. We have also asked the Minister to refer it to any such evidence but the Minister has not responded."The hearing, which took place in Committee Room 19 at the Palace of Westminster on Wednesday afternoon, first heard evidence from Mr. Henry Carr QC (IP Bar Association/11 South Square), Vicki Salmon (CIPA/IP Asset) and Tim Roberts (CIPA's President) who gave evidence together. The proceedings closed with evidence from Dr. Christian Gassauer-Fleissner, Chairman of European Patents Lawyers Association (EPLAW). Both sets of witnesses were posed the same 18 questions, with some variations. The members of the Committee in attendance and posing the questions were Nia Griffith (Labour), Kelvin Hopkins (Labour), Penny Mordaunt (Conservative), Stephen Phillips (Conservative) and Henry Smith (Conservative).
 |
| Chairman of the Scrutiny Committee, Mr. William Cash MP |
“There have been contributions from Sir Robin Jacob who has offered a few opinions but on the issues which he has offered opinions it is pretty clear that no one wants to listen very much.”Mr. Cash MP went on to mention the oft-quoted statement of Professor Sir Robin Jacob, who was described by Mr. Cash as being regarded as “generally being regarding as having unrivaled expertise in the field of intellectual property” [“What is it about Sir Robin which makes politicians swoon?”, asks Merpel, remembering Baroness Wilcox's comments] from his 2 September 2011 opinion
“This is no time for anything other than plain speaking. I am fortunate enough to have had wide experience, as barrister, judge and now academic, with the patent system from all angles. I have many contacts amongst users and lawyers. I know of no one in favour of involvement of the CJEU in patent litigation. On the contrary all users, lawyers and judges are unanimously against it."
 |
| Mr. Henry Carr QC |
"We have put comments in but sometimes it’s hard to know how many of them get through and how strong a negotiating position there is– because we represent to the UK government– and then it all goes quiet. I think we find the whole European legislative process quite opaque. It’s very difficult at times to find even what draft legislation is under discussion and therefore its quite difficult to see what's going on to it."
 |
| Vicki Salmon |
"405 paragraphs of immense complexity which curiously do not deal with some of the fundamental questions that one would expect the rules to deal with"
When questioned about their opinions on the impact assessments conducted by the Commission and others, the panel unanimously stated that they felt the assessments to be, as Mr. Carr stated, "very poor and quite alarming from the perspective of SMEs". Further, the panel of witnesses agreed the assessments were based on a whole slew of assumptions which were outdated and not based on solid foundations upon which to justify the current system. It was suggested that it would be better that a brand new assessment be undertaken, especially in light of the departure of the EU who, up until the introduction of the enhanced cooperation procedure and the CJEU's Opinion, had been a signatory and a source of funding for the system.
 |
| The AmeriKat so thrilled to be spending the afternoon in Parliament she even brought a hat... |
"In relation to enhanced cooperation, as you raise that question, of course there are limitations on the use of that procedure. Really, I think I am right in saying, it should be used mainly as a matter of last resort. But, are there any political reasons that you can consider, which would tend towards the promotion of this proposal which have not yet been disclosed as to who and which countries might benefit from it as compared, for example, [to] the assertions that Europe as a whole might benefit from it? Could you just elaborate a little bit on some of the underlying political questions, because I know the Poles were particularly interested to get this through during their Presidency and I just sort of felt that this was being pushed rather, and that there was accelerated enthusiasm to get it through to benefit individual countries. Could you perhaps just give us a little elaboration on your views of that?"
Mr. Carr was the first to bravely address that question. The exchange that followed the question was as follows and ended with Mr. Cash MP requesting a further paper from the panel on the potentially hidden issues of why the proposals were being pushed forward with such great force:
MR. CARR: I think the country that stands, potentially, to benefit most form this is Germany. And the reason for that is that Germany, as you know, already has the European Patent Office which is a very big employer in Germany and very, very successful organization….and I think is the second biggest after the Commission – the second biggest European institution. If Germany, as it wishes to, gets the Central Division, in effect, for reasons I can explain if you wish, most cases will go to the Central Division. And therefore the other centers of expertise in patent litigation, which are primarily the UK and the Netherlands will lose out very, very considerably. Germany will then gain another big, big institution which will be very, very important and will very much expand the amount of patent litigation, its importance to patents, than it already has. So they are the big gainers. Why that caused the Poles to accelerate, I am not sure. I think many of these Presidencies wants to say they have done something. Certainly the big gainers will be Germany if they get that Central Division.
WILLIAM CASH MP: In relation to the German question, would you say that it will enhance their economic prosperity for them to have the advantages of this court in the way you described?
Ms. Penny Mordaunt MP
MR. CARR: Well, I would do, I would certainly say it will. If we look at the situation in the UK at the moment, and perhaps compare it with Germany. I have seen various figures, the reliability I would not vouch for. In broad terms currently patent litigation and patent advisory services in the UK generates hundreds of millions of pounds for the economy - that's as it stands at present. Germany is even more so: there are more patent cases in Germany than here, but we are still a big player. If we were to get the Central Division, estimates that I have seen are that we would get as much as five times as much patent related work than we do at the moment – so we would be into billions. Whoever gets the Central Division, that's going to be a major employer - a major employer of skilled people, so many cases, so much staff - so I think whoever gets that will benefit their economy greatly if it goes ahead.
WILLIAM CASH MP: ...Perhaps you could do a paper on that question. There seems to be such unanimity in the profession that I suspect that there are things not yet known to Parliament which are not being disclosed to us at the moment, which we would be able to benefit from, so if you could do that that would be helpful.
 |
| The CJEU is alleged to be slow and causes delays. The clock says 8:45 - but is that AM or PM? |
The Committee then posed several questions regarding the profession's concern on the inclusion of Articles 6 to 8 in the Proposed Regulation. Mr. Hopkins MP questioned what was the cause for the "uniform and profound concern over the involvement" of the Court of Justice of the European Union ("CJEU", also referred to as the "ECJ" during the hearing) on substantive patent law. Mr. Carr explained the concern from the perspective of the trade mark law experience:
"I have appeared in several cases in the European Court of Justice largely because the trade mark system is already subject to the ECJ, because we have a Trade Mark Regulation and a Trade Mark Directive, so questions of interpretation are referred to the ECJ. The practical effect that this has is that, let’s say you are involved in a trade mark case [and] a question of interpretation arises, unless the UK court is absolutely certain what the answer is not just here but in all Member States, it has to refer it. So your case then stops and it takes about 2 years to get an answer from the ECJ. And of course during that time, there are additional costs because the parties have to prepare written observations, governments intervene and you go to a hearing in the ECJ and you eventually get an answer. It then comes back to the UK court who tries to interpret the answer, and one of the problems – there has not just been extra delay and extra costs – but in trade mark [law] its been really difficult to interpret the answer. So then there is a great debate about who has won! And then you have to continue with the case. So it’s not proved [to be] a system which intellectual property lawyers throughout Europe wish to expand, and the problem with the existing proposal is that it expands it into patents, as well."
 |
| Mr. Kelvin Hopkins MP |
"[Patent lawyers] in other European countries. I referred in my evidence to the opinion of the Council of Bars and Law Societies of Europe which apparently represents about 1 million lawyers – the fact there are 1 million lawyers in Europe is worrying, but nonetheless - and their view was that partly because of this Article 6 to 8, the proposed system will increase legal uncertainty, increase costs and be bad for users, so I think it is a very widespread view.”
 |
| Ms. Nia Griffths MP |
Mr. Cash MP asked that the panel in their supplemental paper to examine the reasons why Spain and Italy did not want to take part in the unitary patent system and/or Unified Patent Court. He stated that:
WILLIAM CASH MP: I am getting increasingly puzzled about the question of why it is there is this headlong determination, rather obstinate determination, to go ahead with the proposal which the entire industry , the lawyers, the judges, Sir Robin Jacob, everybody is against but there is some dynamic operating at the centre of gravity that is driving it forward despite the expert evidence of pretty well everybody.
Evelyn Waugh's Scoop
MR. ROBERTS: The only theory I can suggest to you is that the EU needs a victory and this can be presented as a victory. This is something they have been trying to do for 40 years. They’ve almost got agreement on something. It is a very desirable objective and it is being presented outside the UK as a victory, as something the EU can do… As the Daily Beast requested “please cable victories” and that is the motivation behind this.
