Joff Wild

There has been no more controversial IP issue in Europe over recent times than proposals to establish a unitary patent right and accompanying court system in the EU. Now, after years of discussion and compromise, it looks like we are finally going to get an EU patent and a means to litigate it. Some expect the first rights to be granted as early as 2014.

As this blog has recorded, there have been a number of very serious criticisms made of the plans as they now stand. These have come from industry, the judiciary and senior members of the European patent bar. In issue 58 of IAM, two distinguished UK patent litigators - Alan Johnson and Philip Westmacott, London-based partners of law firm Bristows – take a detailed look at what has been agreed. They expose many flaws which promise to make litigation expensive, convoluted and complicated; the very opposite of what the unitary patent is supposed to deliver. There seems “little doubt that Europe is about to enter a brave new world for patent litigation,” they write. But the idea that this will mean greater certainty and less cost for SMEs and others, so heralding a new age of innovative activity across the EU could turn out to be very wrong indeed:

The commission believes that the unitary patent and the UPC will increase innovation and competitiveness and be of special benefit to small and medium-sized enterprises (SMEs). However, many claim that as a result of the compromises reached between 25 states, as well as various institutions, the new creation risks becoming a Frankenstein’s monster of a system. Parts have been taken from different national  practices, stitched together and clothed in a  complex web of jurisdictional and language rules, such that the resulting creature is  frightening for prospective users to behold. One can only hope that it will be salvaged by the good sense of the new European patent judiciary, for (at the risk of mixing metaphors) it will now be their job to take the sow’s ear and turn it into a silk purse.

For anyone who has an interest in the European patent system, what Johnson and Westmacott have to say should be essential reading. Some will call them a vested interest, standing in the way of progress because the current state of affairs – in which patents are litigated on a country by country basis in Europe – suits them very well indeed. The answer to that accusation is a very simple one: what is on the table is actually a lawyer’s dream. The opportunities to use the inconsistencies of the system to forum shop, to delay proceedings, to increase the other side’s costs and so on are varied and, from a litigator’s perspective, very exciting. From a purely selfish perspective, lawyers at top European patent law firms, such as Bristows, could not have devised a more enticing set of rules. And they have been saying this continuously for quite a while – it’s just that no-one at the Commission or in the member states has taken much notice of them. That could well turn out to be a major mistake; as Johnson and Westmacott point out, when push comes to shove, the lawyers must do their best for their clients.

Having made their decisions, the Commission and member states must now hope that judges sitting in the various courts of the unified patent system in the EU will dig them out of the hole they have created. Johnson and Westmacott conclude thus:

Some will say that the brave new world of the UPC will prove far less attractive than might first appear. They may even say that by introducing a complex and inherently uncertain mode of settling European patent disputes, the only winners will be the lawyers. It is ironic that among the most vocal critics of the new system are European lawyers (of whom the authors are two), who, it might have been supposed, would welcome the opportunities offered by a complex new system compared to the relative certainty and predictability of the current options. Of course, the duty of these lawyers will be to use the system to their clients’ best advantage in each case.

We started this article by pointing out that the fate of this new court is in the hands of the judges, who have already made thoughtful and constructive criticisms of the proposals. In the end, therefore, we must hope that, through careful preparation and wise and extensive deliberations before the court even opens its doors, these judges will be able to take a sensible and consistent line on how the new system should operate, despite its apparent shortcomings and potential for abuse. To the extent that the new scheme is incomplete and uncertain, the judges simply must succeed: they deserve our best wishes in the challenging tasks ahead.

You can read the Johnson and Westmacott article here.