The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities.

  • Great Britain. Parliment. House of Lords. Select Committee on the European Communities.
Date:
1998
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Licence: Open Government Licence

Credit: The Community patent and the patent system in Europe, with evidence / House of Lords, Select committee on the European Communities. Source: Wellcome Collection.

    85/144 (page 53)
    19 March 1998] [Continued —_—_—_———————————————————————————————— eee What should be the relationship between the Community instrument and the European Patent Convention? I am afraid I cannot give a suitable answer. Allow me to make a final remark. I do not rule out that the Luxembourg Convention will not come into effect in the foreseeable future. A political solution to the language problem could be a stumbling block. If this were the case there is no impediment to improving the present situation within the framework of the European Patent Convention, especially as far as the litigation is concerned. At the moment the interested circles are prepared— so it seems—to accept radical measures. December 1997 Memorandum by the Hon Messrs Justice Jacob and Justice Laddie 1. The existing arrangements for the litigation of patents and other intellectual property rights in Europe are unsatisfactory and are becoming increasingly so. The problems are: (a) The need for parallel suits in a number of jurisdictions with the possibilities of different (and conflicting) results in different countries. (b) The assertion of cross-border jurisdiction by the courts of some countries (notably Holland but also Germany and France to a much lesser extent). This problem is described in the judgments of Laddie J and the Court of Appeal in Fort Dodge, the judgments of Laddie J in Coin Controls Lloyd J in Pearce. Copies of these judgments are annexed.' (c) The Brussels Convention was not drafted with sufficient regard to intellectual property (and probably other parallel rights, e.g., in defamation) in mind: (i) It makes no sense to draw a distinction between registered rights (such as patents) and unregistered rights (such as copyright or design right); (ii) Furthermore, in the case of IP rights plaintiffs are able to subvert the main provisions of the Convention. Article 2 provides the main rule—that the plaintiff must sue the defendant in his home state. But IP rights can be asserted against a seller—and in a common market it is nearly always possible to find a seller in a jurisdiction of the plaintiff's choosing. The plaintiff sues that seller and then joins in parties from elsewhere. So choice of jurisdiction is in practice given to the plaintiff. (iii) Potential defendants are increasingly trying to forum shop themselves—by starting actions for declarations of non-infringement and revocation suits before a plaintiff starts Dutch proceedings. They use Article 21 to say that the court of their choice is first seised of the dispute. 2. The European Patent Office has become increasingly bureaucratic and slow. Moreover its dispute resolution procedure is increasingly the subject of criticism. It is to be hoped (and expected) that things will improve, but the position remains that it is essentially a patent office. We do not think it should be given the ultimate say over validity as is proposed in the Green Paper. 3. Industry will not use the Luxembourg Convention as it stands. The reasons are two-fold: inadequate judicial mechanisms and costs because of translation requirements. 4. As to translation problems, these involve cultural as well as practical problems. Even with the present system of the EPO the total cost of translations is estimated to be DM800m p.a.—with European industry paying DM480m of that. Patent costs are about ten times higher for Europe than for the USA. Many continental European companies are concluding that one should move to a single language—English. To those who say an individual has a basic right to know what the subject of a monopoly is in his own language, large industry at least is saying this is impractical. Moreover since validity depends upon the prior art and that art is likely to be in English (or some other foreign language) the position that a man can ascertain his rights simply reading material in his own language has long been sold. Even under the present system translations are only provided late in the day—yet if a patent is granted rights operate from the date of publication of the application just in the language of the original application (French, German or English). 5. We (particularly Jacob J) have entered discussions with a number of continental judges (and Mr Leardini, of the Commission and author of the Green paper) about a way forward. In particular Jacob J has had meetings with the president of the Federal Patent Court of Germany and Judge Brinkhof of the court of appeal of the Hague and both of us are in discussion with Judge Willems of the court of first instance at the Hague. In addition Jacob J has attended a meeting in Divonne of an association of the heads of patents departments of large European Companies. The following picture emerges: ' Not printed in this Report.