Patents - it’s not over after all
Those of you who are following the twists and turns of the European patent saga should know that the fat lady has not yet sung. The Gazette wisely said in their recent article that the saga ‘appears to have been settled’. But appearances are known to be deceptive, and the European Parliament this week threw the whole deal into question once more. And the UK is to blame.
Let me rewind a bit, but not too far, because the story has been going on for decades. At the recent EU summit - the one called to stabilise the euro (so far, so good there, but appearances can be deceptive, as I have said) - an additional decision was taken. The future of the European patent, about which I have written several times, had been held up by a squabble between the UK, France and Germany as to the location of the headquarters of the new patent court. This was settled at the summit in a typical - and to my mind shameful - Euro-fudge. The seat of the Unified Patent Court will be in Paris, but there will be two Central Division sections, one in London dealing with chemistry and pharmaceuticals, and the other in Munich, dealing with mechanical engineering. The UK government - along with that of France and Germany - is as responsible as anyone for this Euro-fudge, pushing national interests to the point of absurdity.
I pause here to note that the Paris Bar released a triumphant press release about the location of the seat of the Court in Paris, saying in effect that it was the Paris Bar wot won it: ‘ …at the heart of European law… recognition of legal know-how and technology’ and so on. They were not alone in nationalistic cheerleading. The UK’s Intellectual Property Office issued its own press release, headed ‘British business boost as Patent Court comes to London’. This is how European business is done, with each state claiming credit for what it likes, and usually blaming ‘Europe’ for what it does not.
The Gazette article also referred to the question - another so-called national triumph, this time by David Cameron on the part of the UK - regarding the ability of the European Court of Justice to pronounce on referrals under the new unified patent regime. The UK didn’t want matters being ‘snarled up in the processes of the European Court of Justice’, by having questions referred by local and regional European Courts to non-specialist ECJ judges. The UK's Intellectual Property Office backed him and said: 'Including Articles 6-8 [the relevant articles of the legislation] in the regulation allows for referrals to the ECJ, which risks adding delays and uncertainty to what are essentially commercial disputes between private parties.'
Unfortunately, this is where the smooth passage to supreme UK - and French and German - triumph stumbles, because members of the European Parliament are not happy, feeling that the carefully considered legislation (agreed between the three EU institutions at the end of last year) has been gutted at the last moment by national interests. They feel that the parliament, which has a co-decision role here, has been circumvented and its role subverted by last minute national manoeuvring at the summit. But, more importantly, they also disagree on the substance, believing that the removal of Articles 6-8 makes the proposal "an empty shell".
They consider that the articles provide a common EU base for the patent, and that without them - since national courts can then rule in patent cases - the applicant might still have to apply for single patents in each member state to be sure that patent protection is granted, on the basis that the ECJ alone offers definitive EU-wide protection. The European Commission has also reserved its position on the deletion of the Articles, for the same reason - although it should be said that plenty of legal experts can be found for the view that deletion is the right way forward.
What a Euro-pudding. This is the kind of national brinksmanship which gives the EU a bad name. The notion of Europe as a political concept is meant to overcome national rivalries, but seems instead to be a breeding ground for them. At any rate, for those of you who like soap operas, the long-running ‘Gone With the Patents’ is not yet over.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs