Window May Be Closing For EU Patent Harmonisation

By Monika Ermert for Intellectual Property Watch
MUNICH – After years of debate, the window of opportunity could be closing for the proposed next step for harmonising the European patent system by creating a centralised European patent court, judging by comments from officials.

German Justice Minister Brigitte Zypries, at a two-day symposium on the Future of the European Patent Jurisdiction in Munich this week, said that if European governments were unable to agree on an overall concept, “we should have the courage to put an end to the discussion and stay with the status quo.”

Margot Fröhlinger, head of knowledge-based services at the European Commission Internal Market Directorate-General, said two camps are fighting each other over the architecture of a central EU patent jurisdiction.

Acknowledgement of a failure to compromise on the issue was the conclusion of the responsible Council of Ministers Working Group at a meeting last weekend, Zypries said. The current attempt to compromise on the EU patent jurisdiction being taken over on 1 July by the Portuguese presidency would be “definitively the last attempt.”

But some key participants in Munich sought to get some momentum on the patent issue.

US Court of Appeals Judge Randall Rader in the discussion in Munich pointed to possible advantages of a unified EU system for further harmonising the patent system globally. Randall said: “I want to sell back to you the idea that we have borrowed from you here.” The Court of Appeals for the Federal Circuit had been modelled after EU harmonisation ideas, he said, and a centralised EU system would help harmonisation at the global level.

“The next course in harmonising the EU patents system is ready to be served,” said Swiss patent authority Roland Grossenbacher, Co-Chairman of the Working Party Litigation. “And it seems to be a quite appetizing course.” The Working Party Litigation, installed by the contracting states of the European Patent Organisation (EPO) in 1999 after four years of talks has proposed a European Patent Litigation Agreement (EPLA) – the “main course.”

The EPLA proposal first tabled in 2003 would create a European Patent Court with several possible regional chambers for the first instance and a central appeals court. A central registry and potential regional registries would assign the cases to the highly specialised patent courts.

The central patent litigation system would address the problem of a dispersed and sometimes contradictory judicial practice in patent litigation over Europe. While national patents still have to be challenged or protected before the national courts, the new European court system would cover jurisdiction for European patents. Up to now, these have had to be litigated at courts before each and every member state where the patent was violated, despite being granted as a single patent. The unified EU patent litigation system, according to Grossenbacher, is the natural next step in the “success story” of the EPO, which spans Europe including the European Union.

The proposed EPLA also is an attempt to solve the language problem that the multilingual European Union is struggling with. Cases would be handled in the three official languages of the EPO (English, French and German). But there also is the possibility to have the hearings in the language of the respective regional chamber if parties agreed, Grossenbacher said. The language problem is one which sharply divides the European Union. The EU has 23 official languages, a heavy burden for the patent system.

“Some EU member states say they want EPLA and nothing else,” said Froehlinger. “Others say they want to have a Community Jurisdiction. The two camps have to come to a compromise.”

The European Commission, in a communication, set out principles for the compromise, from a decentralised First Instance based on experienced specialised national patent courts working under a set of uniform procedural rules and a central appeals court at EU level to the insertion of technical know-how in the new patent system and cost-effective litigation.

Contrary to the EPLA proposal, Froehlinger said members of the appeals chambers at the patent offices should not be eligible as judges. “The Commission is of the opinion that this would contradict the judicial independence,” said Froehlinger.

Differences in substance are marginal between the EPLA and the European Community solution principles, though, say experts in Munich. EPLA was seen by the Commission as a coherent solution given some amendments to align it with Community law, said Froehlinger. Yet given the opposition of some member states (which Italy expressed openly at the Munich conference) there is no way for EU member states to just sign EPLA for themselves. “EPLA cannot be signed by EU member states unilaterally.”

The Commission needs a mandate to negotiate EPLA for the Union, said Froehlinger. As this mandate has not been given to it, member states fervently in favour of EPLA are bound to wait for what the EU legislative system will produce over time.

The situation has led to some criticism from Zypries, who headed the negotiations over the last six month of the German EU presidency “You cannot keep asking for reforms of the patent system on the one hand and spoil progress to protect your national interests” on the other hand, she said. Johannes Wichard, one of the negotiators for the German Ministry of Justice, warned at Munich that EPLA had raised the bar. “It does not make sense to now discuss new proposals that are not as good,” he said.

Industry representatives were divided about how to proceed throughout the political stalemate. “We don’t give up,” said Annika Rykberg, corporate counsel in the intellectual property group at AB Electrolux. She strongly disagreed with Zypries’ statement that talks on patent reform should be given up as the current system was “time consuming, cost-intensive and uncertain.”

“Sometimes you hear the argument that big industry would like to have the possibility to hunt infringers in several countries,” she said. “This is not true. No big company in its right mind would choose to do that.”

On the other hand, a minimal compromise at the EU level that would be less than the EPLA was opposed by David Rosenberg, vice president of GlaxoSmithKline and Klaus Dieter Langfinger, head of intellectual property at BASF. “We are for a European litigation system,” Langfinger said. “But a compromise at any cost does not make sense. If we cannot reach improvement, we should stop.” Rosenberg went further, saying he was “not at all convinced that there was a need for a centralised patent jurisdiction.”

Never before have there been so many voices for keeping the status quo, said the president of German Patent Court, and main host of the symposium, Raimund Lutz. Therefore, he is hoping the Portuguese presidency will be able to cut the Gordion knot (seemingly intractable problem).

“We should eat up that course, before it gets cold or even is spoiled,” Grossenbacher said, arguing that the history of the European Patent Organisation with the European Patent Office as its main body proved that broader ratification was the way to go. EPO originally was founded only by Belgium, France, Germany, Luxembourg, Netherlands, Switzerland and the United Kingdom.

It has since gathered 32 contracting states and patent protection may be granted for 37 countries. Grossenbacher said the impossibility of moving forward at the time led to an imperfect solution that proved highly successful afterwards by becoming so attractive to many countries. Now, he said, EPLA should be allowed to pave the way to complete the EU patent system.

Monika Ermert may be reached at info@ip-watch.ch.