In what must count as one of the great non-surprises in the history of the European Union, member states have once again failed to agree which city should play host to the central division of the putative EU patent court. A meeting of the Competitiveness Council, held on Wednesday in Copenhagen, ended in deadlock, with Paris, Munich and London all still in the running. The IP Kat reports that in the press conference following the break-up of the meeting, Denmark’s minster for business and growth told journalists: “We have not found a solution that everyone can support. Unfortunately, obviously we very much regret that fact but I am an optimist. There are 31 days remaining of the Danish Presidency and the Heads of State of Government have committed themselves to finding a solution by the end of June. We still believe that even if we cannot solve it today, we will manage to solve it during the Danish Presidency.”

I think we may have to take that with a pinch of salt. If the UK’s Law Society Gazette is to be believed, the three countries looking to play host to the court are playing for very high stakes. In a piece published today, the weekly newspaper of the English and Welsh legal profession claims that the UK legal sector could lose up to £3 billion per year if the court is located elsewhere in Europe. Presumably, similar sums have been done by the Law Society’s equivalents in France and Germany, and have been relayed to governments there.

Although an opinion piece in the Gazette argues that the UK is the logical home for the court, that is not a sustainable view given the UK’s lack of involvement in the negotiations over the patent, the UK’s relative lack of European patent owners and applicants, the fact that much more patent litigation already takes place in Germany, the UK’s non-involvement in the euro-zone and so on. However, the political pressure on the UK government not to see sense on this is immense – not least from Conservative Party MPs. The same pressures will also be bearing down on the French and German governments. Given this, it is difficult to see where any sensible compromise is going to come from. If there is to be a solution, some kind of fudge looks most likely. Perhaps we will end up with a court that moves from country to country – something that will satisfy no-one.

In any case, the most important issue in all this is not the location of the court, but the foundations on which it and the proposed EU patent system is being built. As we have been reporting for a while, there is significant disquiet among senior IP figures in industry, the judiciary and the legal profession about the plans. Spearheading the criticism has been Jochen Pagenberg, an IP Hall of Fame inductee and one of the leading patent litigators in Europe (and someone whose expertise would be much in demand wherever the court is located).

Earlier this week, Pagenberg took the extraordinary step of writing to the president of the European Council, Herman von Rompuy, decrying what he called the “legal and practical deficiencies” of the current plans, and claiming that members of the General Secretariat of the Council are hiding “legislative texts from public discussion because they fear that otherwise users and the members of national parliaments would learn about negative impacts of the project and therefore would oppose and refuse ratification”. Pagenberg’s concerns, as expressed in the letter and also in an article he wrote recently for the German publication GRUR, are widely shared, as any discussion of the issues with both corporate and private practice IP experts in Europe will quickly confirm. But, it seems, no-one at the EU-level is ready to listen.

The end effect of all this will be that should the patent and court get the green light without the concerns of users, judges and lawyers being taken into account, the EU will have effectively created a white elephant that few people will use, unless they feel it can be gamed in some way. Thus, years of negotiating time will have been wasted, while a great deal of money will be spent for no good reason. And, of course, a golden opportunity to create something that could have made a real difference in Europe would have been wasted.

Those negotiating the EU court and patent may not have noticed, but there is a major crisis currently gripping our continent, caused by other decisions taken by European politicians and bureaucrats who thought that they knew best and did not have to take into account the concerns expressed by many interested and well-informed observers. Of course, messing up the chance to build an EU patent system is not nearly as damaging as creating a poorly thought-through currency union, but the principle is the same. If you rush head long into something without taking any notice of critics because you have convinced yourself that they are nothing more than a vested interest, then you usually end up paying a heavy price. Some things, it seems, Europe never learns.

Sectors

IP management, IP politics, IP litigation, Patents