Jack Ellis

The supposed economic benefits of a unitary patent system for the European Union (EU) were put under the spotlight in a session focused on the proposed European Union patent right at last week’s Chartered Institute of Patent Attorneys (CIPA) annual congress in London.

In a heated discussion, private practice lawyers and in-house counsel from several European jurisdictions debated current proposals for the unitary patent court (UPC). Critics have suggested that the plans, which will create a multitude of local and regional divisions across Europe in addition to a central division split between three countries, will encourage forum shopping as divisions compete to attract business. Eugen Popp, of Meissner Bolte, said that such concerns are misplaced as competition for patent cases already exists between different European courts. He proposed that forum shopping would be perfectly appropriate in the context of an EU-wide patent right: “Attorneys are in competition, our clients are in competition – so why not courts and judges, too?”

David Rosenberg, VP of IP Policy at GlaxoSmithKline, slammed the scheme, arguing that competition between local divisions would inherently mean that they would have to be pro-plaintiff. “It will be systematically disastrous,” he said. “Business does not want a system that is pro-patentee – we want one that is fair. It will be a trolls' paradise – an NPE will be able to sue to Europe-wide effect in a distinctly pro-patentee system.”

Rosenberg also questioned the notion that the unitary patent system is vital for growth and competition in the EU and that its implementation is eagerly awaited by business, as the European Patent Office has claimed, among others. “Ironically, it is anti-Europe,” he said, “since defendants will largely be from European countries and plaintiffs will mostly be American and Asian.”

However, Willem Hoyng, of Hoyng Monegier, suggested that competition between local divisions would be based on the quality of the decisions they hand down, rather than which of them were viewed as the most pro-patentee. He also rebuffed Rosenberg’s contention that the use of judges from EU jurisdictions far less experienced in handling patent litigation would result in anomalous decisions being handed down by the UPC. Hoyng claimed that his home country – the Netherlands – boasts a number of top-notch patent judges, with many more to be found in Germany and Britain. The proposals’ requirements for multinational panels of judges in each division and the possibility of appointing technical experts, if they are deemed necessary, would all but guarantee an experienced judge from somewhere in the EU would be hearing each patent case, he said.

Despite his apprehensions, Rosenberg conceded that the unitary patent project appears to be going ahead as currently planned. As such, he recommended that patent owners take advantage of the opt-out clause in the present proposals (see article 58 of the draft unitary patent agreement). European patent grants and applications made under the current European Patent Convention system will be subject to the UPC when it is created. However, holders of European patents granted and applied for prior to the implementation of unitary patent legislation will have a seven-year transition period in which they can opt out of the jurisdiction of the UPC. Patentees who have opted out will continue to be able to initiate proceedings in national courts for the duration of the transition period and can opt back in to the UPC at any point during the seven years. Furthermore, the transition period may be extended by a further seven years if the unitary patent system isn’t going to plan. “We predict a very high number of opt-outs,” said Rosenberg. “That certainly isn’t a vote of confidence.”