The European Scrutiny Committee of the UK’s House of Commons has published a report that is highly critical of current proposals to create a unitary patent in the EU. The MPs who have written The Unified Patent Court: help or hindrance? conclude that:

Although the theory of a unitary patent and unitary patent court in Europe has long been thought desirable, the practice has long been elusive. The latest attempt appears, regrettably, to be a further example of this. Moreover, some of the criticisms raised by witnesses result from traits that are so ingrained in the operation of the EU that a legitimate question arises whether an effective unitary patent can ever be achieved within the confines of the EU’s internal legal order….

We conclude that overall that the draft agreement on the Unified Patent Court is likely to hinder, rather than help, the enforcement of patents within the European Union. This will particularly be so for SMEs, the main intended beneficiaries. Given our concerns, it is vital that the UK Government adopts a strong position reflecting the concerns of practitioners in final negotiations, as well as calling for the Central Division to be in London in order to mitigate the most damaging effects of a unitary EU-wide patent.

However, it is clear that the MPs sitting on the committee are less than impressed with the role that the UK government has played in the negotiating process up to now. They also accuse it of being “not as candid with us in our scrutiny of this agreement as we would expect” and plainly do not feel that the IP minister, Baroness Wilcox, has been on top of her brief. That said, if the patent does finally go ahead, the MPs state, it is essential that the central court be located in London:

The location of the Central Division will be crucial, as it will inevitably have significant influence on the practice and procedures of the Court, as well as bring significant economic advantages to the host city. Bringing the Central Division to London (already a centre of international arbitration) would both build the credibility of the Court and bring economic benefits to London. If the Central Division is located outside the UK, there will be far less requirement for the high level of patent expertise that currently exists in this country. …

It appeared from the Minister’s evidence that this was, however, an issue on which the UK might compromise. This would be unacceptable. As one of our witnesses noted “Whoever gets the Central Division will be able to mitigate or to put its own national stamp—because it is the most important place—on how this Court works. For example, there will be decisions the Central Division makes that affect everywhere. You will be able to mitigate, definitely, the most serious effects.

This scathing report could quite easily have been written by any group representing private practice patent practitioners in the UK and accurately reflects the opinions of most of them. That, however, is not a huge surprise: all the witnesses called by the committee come from either government or bodies representing private practice lawyers and attorneys, while most of the written evidence (here and here) also comes from the same sources. It is quite possible that SMEs and large IP owners feel exactly the same, but, it seems, no-one bothered to ask them. It is also worth noting that 50% of the MPs sitting on the committee are Conservatives and so representatives of a party that is not always well disposed to the EU, while the committee’s chairman Bill Cash is a leading “Euro-sceptic” and almost invariably opposed to any form of further EU integration.

Putting all that to one side, though, the problems the committee identifies with the current proposals have been well rehearsed, not only in the UK but throughout Europe. As the committee says, though, it seems that policy makers have almost wilfully chosen to ignore them. It is unlikely that the report will change that, though if it has an impact on the British government’s approach to the negotiating process then it might. Whether that happens, however, is very much open to question. The committee itself can do no more than publish its report; it has no power to force the government to do anything.

Up to now, the UK has shown very little interest in the EU patent, preferring instead to sit on the sidelines while other countries – notably the French and the Germans – have been much more actively engaged. Clearly, the British should have been in there from the start and should not have let things get as far as they have before starting to get deeply involved. After what has been years of the UK’s complete non-engagement with the debate, it is going to be very difficult to start demanding wholesale changes, as desirable as they may be. “Why didn’t you speak up earlier?” other EU member states will quite reasonably ask.

And as for having the court in London, the purpose of the EU patent is not to ensure that private practice professionals in the UK continue to earn a good living. The court should be where is best for European patent owners. Given that the UK has relatively few of these; given that France and, especially, Germany have many more; given that London is very expensive; given that the UK is not a part of the Eurozone; given that most European patent litigation takes place in Germany already; and so on; it is hard to make any kind of serious case for the UK capital. Perhaps UK positioning on other issues might be taken more seriously if London were removed from the equation.

Sectors

IP management, IP politics, IP litigation, Patents