Sarah Turner, of counsel, Hogan Lovells
Opinion: Patently obvious: EU patent court should be in London
12 December 2011
28 November 2013
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As well as attempting to sort out the eurozone crisis, Germany, France and the UK are battling over which country should host the Central Division of the proposed European Unified Patent Court.
This is part of a debate that has raged for many years about the creation of a unitary patent (one right valid throughout Europe) along with a single EU-wide patent litigation system. At the moment Europe is a collection of national patent systems rather than one jurisdiction - a situation that can lead to different decisions on the same patent.
On 5 December ministers in charge of IP at the Competitiveness Council of the EU debated a package drawn up by the Polish presidency that is committed to reaching an agreement on the creation of the unified court before the end of this year. Several proposals have apparently been made by member states interested in hosting the Central Division of the Court of First Instance. But why does location matter?
The country that is awarded the Central Division will enjoy an enviable position in the new European patent system as well as likely economic gain. Under the proposed regulations for the unified court, every standalone patent revocation action will have to be commenced in the Central Division, as will actions for declarations of non-infringement. Furthermore, local divisions can choose to refer revocation counterclaims to the Central Division.
The presidency has also suggested that parties may choose to bring infringement actions before the Central Division if the defendant is outside the EU. That adds
up to a lot of business.
The presidency has proposed that the host member state provides the necessary facilities and staff, at least for an initial period. London has everything that is needed to run an efficient Unified Patent Court. Not only is it a convenient location for litigants travelling from around the world, but the new Rolls Building, where the English Patents Court is now housed, is the largest dedicated business court in Europe with state-of-the-art facilities.
The English courts are already the chosen forum for many European patent disputes. The quality and relative speed of well-reasoned decisions, as well as the use of court procedures such as cross-examination and disclosure, are much respected throughout the world. Most of the English judges who are experienced in patent cases also have technical backgrounds, which is so important in complex cases.
A large number of potential users of the new system will be from the US.
A more familiar system may encourage US businesses to use it rather than continuing to use national systems.
Many multinational companies fear a bifurcated system, such as that in Germany, in which infringement and validity are tried separately. Such a system can lead to an injunction before a defendant is able to challenge the validity of the patent in dispute. Locating the Central Division in the UK could discourage bifurcation.
The language barrier is also an issue. While the language of the proceedings is the subject of another hot debate, locating the Central Division in the UK would be seen as a benefit to many potential users, particularly as the majority of European patents are written in English.
Many in industry, along with their advisers, would welcome the new patents system provided it is fit for purpose. One way of achieving this is to build the Unified Patent Court around a credible, efficient, existing court. London ticks all those boxes.
Isn’t it about time that the UK was given a chance to host a European IP institution?