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
Catalogue details

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.

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    {Lord Borrie Contd] have to apply the same provisions of the European Patent Convention. In practice there are still differences. There are famous examples. The Epilady case is a famous example of it. Of course, there is a big problem. There is no supra-national judge who can say which judge has done it well. That is a problem and that is the reason why we are here, I suppose, because the Green Paper suggests that we try to find a judicial arrangement for this problem. Chairman 215. Perhaps we could move to that now. I would like to discuss what is the preferred solution for a judicial arrangement. The original one, as I understand it, was that the national court of any Member State should be able to deal with validity and infringement and that the revocation of a patent by the judge of one Member State would operate throughout the Community. I understand that was the 1975 proposal. The Green Paper suggests that validity be dealt with separately from infringement and the favoured body for dealing with validity is the European Patent Office. Where do you go from there? (Professor Judge Brinkhof) We have a common view. (Sir Hugh Laddie) First of all, let me take the question of whether infringement and validity should be tried separately. I think there is nobody who has experience and expertise in the patent field who thinks that is a good idea. Whether you like it or not, questions of validity and, in particular, questions of prior art on patents affects the scope of the patent and therefore issues of validity and infringement almost always become intertwined. The idea of separating them out mandatorily does not appeal, as far as I am aware, to the overwhelming majority of practitioners. So it should be possible for them both to be tried together. Then, if that is so, there is no doubt what would be the perfect system. You can make up a wish list. A wish list consists of an experienced Court of First Instance with appeals going to a competent appellate court. 216. And each having |©Community-wide jurisdiction. (Sir Hugh Laddie) And each having Community-wide jurisdiction. The problem, it appears to me, is that the obvious way of achieving that would be to have, for example, a Community-wide Court of First Instance manned perhaps on a temporary basis by a panel of judges from the various national systems who have expertise in patent matters leading to a European Court of Appeal in patent matters. The problems besides matters of political will are questions of cost and logistics. Let me explain quickly why I think that is a problem that has to be faced up to. If there were to be a Court of First Instance with pan-European responsibility manned by judges from the Member States one could expect litigation to be quite expensive. Either the court would have to be peripatetic or litigants would have to go to the court if it was sedentary. Either of those will, of course, involve significant costs. If you are talking about a court having jurisdiction over all patent disputes for the whole of the Union you are talking about a fairly large workload and it would mean having one or more courts available in there as sedentary or peripatetic and the cost burden on the party would be significant. If that happened my worry is that it would mean that proceedings before such a Court of First Instance would tend to be slow, it would take time to get them on just because of the mechanics of getting your lawyers in the right place at the same time as the judges and so on and so forth. What would then have to be faced is, how do you deal with emergency applications for injunctive relief, because if you have to wait two years for your trial you can be pretty certain that in many cases the patentee will want to get in fast to get some sort of emergency relief and an obvious thing to do is to go back to the national courts to ask for your emergency relief. That would then undermine the whole point of having a pan-European court of first instance. That drives you, I think, towards this logic, which is that the pan-European court of first instance would have to be available enough and cheap enough to be a suitable court before whom emergency applications had to be made and I just see organisational problems in achieving that, and you have to go all the way back so that all emergency applications have to be made by that court, otherwise you end up with a kort geding sort of procedure in all national courts and you end up with precisely what we do not want, which is lawyers vying to keep the litigation in their courts because it is good for business, which seems to be happening at the moment. So I must say I have no doubt that the best system would be court of first instance and court of appeal, both on a pan-European basis. I have real problems with whether the first is possible, and if you do not have the first that then creates immense problems for just a European court of appeal because you would have national courts of first instance, so you would still have the same sorts of problems as I see we have at the moment, having, importantly, very different procedures, very different ways of assessing evidence, in many respects different forms of relief about what damages you should give and so on and so forth, all funnelling into a single court of appeal, and I can see that causing problems. It seems to me that if you have a single court of appeal you must then work back from that so that the procedures in the courts feeding into it are more or less consistent. So one way or another if you want to solve this you are going to have to try and impose a regime of consistency on the courts of first instance. Finally, I would say this. The real problem with having national courts of first instance, it seems to me, is the one that Sir Robin pointed out, which is the sort of Italian Torpedo type of case. The real problem is that it is very easy to be overwhelmed in a patent dispute if you do not understand what patents are. In particular, the bee in my bonnet is that if you do not know enough about patents you could work on the assumption that they are all valid because they have a stamp on them, and I am afraid to say that patent offices end up by giving patents out in many cases, not all cases, when the patent is invalid and if you end up litigating in front of a court with no