Joff Wild

A final agreement on the creation of a unitary patent litigation system that would cover at least 25 of the 27 EU member states is set to be delayed by months, according to a report in yesterday’s Financial Times. The cause of the hold-up is the dispute between France, Germany and the UK over where the central court should be located. In the proposals which were expected to be signed-off at a meeting of the EU Competiveness Council in December, Paris was named as the venue, but neither the UK nor Germany would agree to that. The former wanted London, while the latter advocated Munich. And, it seems, no-one is backing down, with the FT reporting that German Chancellor Angela Merkel has made clear that “she is unwilling to drop her demands”.

Anyone who has followed the painfully protracted attempts to create a single EU patent and court system will not be surprised at the latest developments. When push comes to shove, national interests (or at least those of certain countries) have almost always been put above the idea of creating the most efficient, transparent and cost-effective EU patent regime possible – hence the fact that German and French, as well as English, are going to be official languages under the plans. And as it has been with languages, so it is now with the court.

I have to say my sympathies are with the Germans here. They file more patents than any other EU nationals, they also undertake more litigation, while their market is the biggest and richest in the EU; all of which means that it is very likely that more German entities will use the court than those from elsewhere. Therefore, if the plan is to keep costs down, it makes sense to house the court in the country which is most convenient for the maximum number of users. Having the EPO next door will also help to make things less expensive no doubt, as will the fact that, unlike London, you can use euros in Munich, while most Europeans will not be forced to catch a plane to get there.

Some argue that having the court in Munich means that it will inevitably adopt the German way of litigating. But that looks pretty bogus to me. This is in the power of all EU member states to decide. If they don't want bifurcation, for example, they don't have to have it; while there is nothing that says just because a court is in Munich the majority of the judges and officials have to be German.

Frankly, the British position puzzles me somewhat. The UK has done very little of the heavy lifting during the EU patent talks, preferring to leave it to France, Germany and a succession of EU presidencies. Politically, the UK is also more detached from the EU mainstream than ever. I just cannot see how we can expect the rest of Europe to take our claims for the court seriously – especially as we are not a part of the Eurozone (though I suppose whether there is a Eurozone at all by the time the court is up and running is a moot point). The French position is easier to understand because at least they have played a forceful role in all of this for a number of years, while the French are the second biggest filers of EPO applications after the Germans. 

Anyway, after interminable arguing this will be resolved. Don’t be surprised to see a compromise involving the central court spending different parts of the year in different countries – probably the worst option for users, but something that various governments can portray as a win of sorts. The good news in all this, though, is that for as long as nothing is signed there is still hope that the Commission and the member states will take note of the many strong criticisms that the current proposals have attracted from senior lawyers, judges and industry figures. In the great scheme of things, addressing and dealing with these is far more important than where the court will sit.