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A report into the proposed Unified Patent Court highlights some serious issues
On 3 May, the House of Commons European Scrutiny Committee published a report entitled The Unified Patent Court: help or hindrance?. This report is not simply a pen-pushing exercise; its conclusions have real weight since ministers should not agree to EU proposals that have not been cleared by it.
The tortuous history of the Unified Patent Court (UPC) and the related legislation on a unitary European patent system that has been debated over the past four decades will not be recited here.
What prompted this report was a sudden proposal to sign off the project within a few weeks at an ’initialling ceremony’ in Warsaw on 22 December 2011.
The fact that the documents to be ’initialled’ contained literally blank spaces on issues that had not yet been agreed was not considered to be a reason to postpone the fireworks that had already been ordered by the Polish presidency.
The principal blank concerned the location of the central division (essentially, the core administrative hub around which the whole of the EU patent litigation would revolve), but in addition there were many other important issues upon which it was agreed to agree later, for example the rules of procedure.
At the last moment the ceremony was cancelled. Signing, or even ’initialling’, an international agreement that has blank spaces is madness.
Central to the criticisms levelled at the UPC is the proposed inclusion of Articles 6 to 8 that give the Court of Justice jurisdiction over patent matters.
The committee concluded: “We agree with those who so strongly oppose the inclusion of Articles 6 to 8 in the unified patent regulation. There is, however, in our opinion an inevitability to their inclusion. This calls into question whether incorporating a unitary patent regime within the EU will ever be practicable.”
Both the conclusion and reservation are well-founded. If the regime is enacted, then it will be worse than the present system - the inmates are truly running the mental asylum.
The dispute over the location of the central division is bitter. The UK, France and Germany have all made bids. Apparently, so has (at least) Italy, but currently Italy is outside of the proposed UPC because it does not like the language requirements (in other words, it wants Italian to be included).
Therefore, potentially one has the through-the-looking-glass-scenario of a country hosting the central division, but one that is not a party to the court system that it will be hosting.
The final madness though is reserved for the UK Government’s refusal to insist on the central division being located in London.
The committee opined: “It appeared from the minister’s evidence that this was, however, an issue on which the UK might compromise. This would be unacceptable.”
The committee added: “We conclude overall that the draft agreement on the UPC is likely to hinder, rather than help, the enforcement of patents within the EU.”