On 21st June, the Business, Innovations and Skills Committee of the UK House of Commons which, among other things, monitors British government IP policy, produced its response to the findings of the Hargreaves Review of Intellectual Property, which came out last year. Tucked away at paragraphs 147 and 148, you’ll find this devastatingly accurate assessment of the government’s negotiating stance, or lack of it, with regard to the EU unitary patent and court. They also suggest what the government should do about it:

In some circumstances we might have concluded that the apparent absence of negotiating "red lines" could be attributed to a desire not to give away the Government's negotiating position, but combined with the overall vagueness about direction and the lack of command of detail, the impression was instead of a lack of firm direction. The depth and range of concerns that have been expressed, from such a wide constituency of interested parties, leads us to conclude that the Government should resist the temptation toward the "need a win" argument in favour of proceeding with the UPC. This is especially so as there are options that would not involve such an irrevocable commitment to an untested idea. For instance, one possible compromise would be to set up the new court system with non-exclusive jurisdiction and let businesses become convinced of its merits over time. This would also allow the court to compete with the newly reinvigorated UK Patents Country [sic] Court.

It is clear to us and the European Scrutiny Committee that the Government's current negotiation strategy for a Unified Patents Court is not fit for purpose. As a matter of urgency the Government needs to take a firmer stand for UK interests in the UPC negotiations than was manifested in the recent evidence session held by the European Scrutiny Committee. In particular, it needs to set out clearly defined options for outcomes acceptable to the UK and a robust strategy on how to translate those options to an acceptable overall solution. Such a strategy has to clearly state the Government's position on avoiding European Court of Justice jurisdiction, avoiding the risk of remote and costly litigation for UK business, and neutralising or mitigating the effects of any bifurcation regime. Furthermore, that strategy should include a cogent argument for locating the central court in London and not one that relies upon hope and aspiration. Anything less runs the risk of undermining the competitiveness of British industry.

Today we learn that the UK government has so far refused to accept a suggested compromise on where the EU patent court should be located, so putting the whole agreement to create a unitary right in danger of collapse. I would suggest there is at least some linkage here. (And isn’t it interesting to see that no-one spotted that that the Patents County Court had been renamed? That’s how much the MPs really know about IP.)

Any fury other member states might feel at the UK’s death bed conversion to a rigorous negotiating position on the patent and court is entirely justified. At both government and representative body level, the British have been conspicuous by their absence during the painstaking talks of the last 10 years. They have left it to others to do the hard work.

But this is realpolitik and now the British government’s hand has been forced. Given the prevailing anti-EU mood there is in the Conservative Party, the Conservative press and a large part of the electorate, it is going to be impossible for David Cameron to make a stand and then to back down. In order for an agreement to now be reached on the unitary patent and court, the British Prime Minister will either have to get his way or he will have to get something big elsewhere so that he can report back an overall win for the UK government when he returns from Brussels. These are big stakes now and what is best for politicians, not patentees, is what will decide the outcome.

Sectors

IP politics, IP litigation, Patents

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