European Patent future held up by City squabbles

After many years of argument, the EU has finally all but reached agreement on introducing a truly harmonised EU patent system. However, the new system is being held up by what may seem from a distance to be a somewhat petty squabble about the location of the Court which would deal with disputes arising under the patent. The whole issue now appears to have become a political football tied up with much bigger issues about the future of the Euro and respective countries’ positions within the bloc.

Every 6 months a different EU Member State takes nominal charge of the EU. The Polish Presidency, which has just finished its term, had hoped to rush through the measures relating to the European patent as something achieved on its watch. However, this was frustrated by difficulty in agreeing the location of the Court with both Germany (which favours Munich) and the UK (favouring London) both making strong cases.

In Germany’s favour is that Munich is already the location of the European Patent Office and that it might make logical sense to group related functions together. Other countries see this as putting too much power in Germany’s hands and are wary of German patent law becoming EU patent law. In London’s favour is that it already has a large amount of patent litigation going through its specialist IP Courts, who are staffed by IP expert Judges (having been patent practitioners themselves). On the other hand there is a perception that London already the dominant EU city for international litigation, and that UK litigation can be more more costly than in some other Member States, a perception the UK patent profession and courts have tried hard to deal with through procedural improvements.

It now appears that another candidate may be making the running, with Paris apparently positioning itself as a compromise between the UK and Germany. A decision had been hoped for this week, but it now appears that it may take another few months. The EU Parliament has demanded a decision by June 2012. The President of the EU Commission, José Manuel Barroso, has described the current impasse as an unacceptable ‘trivial disagreement’.

There are bigger issues than simply national pride at stake as well. A major concern is that the rush to implement the new system means the legislation has still not been properly thought through, despite how long the concept has been wrangled with. In particular, provisions which appoint the European Court of Justice the ultimate appellate court for EU patent matters may severely hamper the smooth running of the new system. The CJEU is already swamped with cases and as result appeals can take a considerable amount of time to reach conclusion. In addition, the Court is not yet renowned for giving clear guidance as to the meaning of the law. In the fields of copyright and trade mark law, it has taken several years of cases before clear principles have begun to be discerned in how the Court approaches the relevant law. Patent appeals tend to be lengthy and technical and the EU may instead benefit from a more specialist appellate Court, along the lines of the Federal Circuit in the United States. However, this now appears to be a faint hope.

2 February 2012