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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    [Chairman Contd] expertise, you will end up having unjustified monopolies and unjustified monopolies mean that you close down parts of European industry for no good reason. Lord Borrie 217. I enjoyed listening to that tremendously and as an idealist myself I can see tremendous advantages in what you have said. I am tempted to ask this: reading the memorandum by yourself and Sir Robin Jacob, there was a very firm statement against the European Patent Office having a significant role, for, I am sure, very good reasons, but supposing instead of an elaborate and, to be effective, expensive and available at all times for injunctive relief and so on, pan-European court of first instance, you had something in between the European Patent Office and that—may I call it, for simplicity’s purposes, a judicialised European Patent Office—which might be temporarily or for periods of time staffed by officials and judges attached to it for periods of time from this country and that country and the other country, so that you had the ideal but in a perhaps less expensive form. Alternatively—and I only thought of this after listening to Judge Brinkhof—why cannot the countries agree that some country, and it naturally occurred to me that it might be the Netherlands, should be allotted the more or less semi-permanent task of providing the court of first instance from its competence, from its expertise, from which appeals would then go to the court of appeal? (Sir Hugh Laddie) 1 can say straightaway that the last suggestion I would welcome with open arms and I would go off fishing. Actually, Lord Borrie, I do not see that that suggestion is any different from what I am putting forward. Whether you call it part of the Patent Office, whether you call it a court, does not matter. The problems of first instance are the problems of making sure that it is competent enough and readily available enough and, importantly, cheap enough, because one of the real downsides of the patent system is that if it can only be used by big industry what will happen is that it will be used by big industry and it will make everybody’s life hell. So having just a body attached to the European Patent Office, it does not matter whether you call it a court, it does not matter what the manning is, you still are faced with exactly the same problem: is it going to be available just in one location? If so, do people have to go there, including for interlocutory applications, or is it peripatetic? It is all the same argument. It is a matter of nomenclature, it seems to me, rather than substantive difference. The problem I have with the European Patent Office, I am afraid, is that it does have a very different attitude to us in questions of evidence. It is a tribunal which has a more relaxed attitude to evidence than we do. Perhaps I could tell you a little story. Before I went on the bench I was asked to go out to the European Patent Office to hear the proceedings on a case where I was instructed in England for patent infringement proceedings. The client sent me out there to see how the equivalent European Patent Office proceedings were run. It was actually an eye opener. [Continued The advocates on each side produced from their pockets letters from professors. The one for the patentee said, “I have got a letter here from Professor so and so who says it is very easy to do this”, to which the lawyer on the other side got up and said, “I have got a letter from so and so who says it would take six months and is very difficult.” When that finished the technical board of appeal said, “Now we have got all the evidence we will go off and decide.” I think they needed a fair amount of education. Lord Plant of Highfield 218. Iam one of the non-lawyers so it is going to be a naive question. How much of a challenge will this actually be to get the degree of harmonisation of proceedings and remedies that would be required to have Courts of First Instance feeding into one Appeal Court? (Sir Robin Jacob) It is a colossal challenge, but I do not think it is impossible and I think it will be do-able if it is thought absolutely necessary. I suspect that it is absolutely necessary. (Sir Nicholas Pumfrey) 1am not so confident that that is the case. There are real cultural problems with assimilating in some respects very different sets of legal procedures to each other. We know on an ordinary basis that there are some things which are done in other courts which we find peculiar, but there are also underlying principles of action which in certain circumstances all members of the Union would find undesirable to turn up in their own legal system, particularly in a self-contained part of that legal system which is what it would have to be. Patent actions often do not stand on their own. They will often be found mixed with copyright infringement actions, actions for registered design, unregistered design, possibly even in this country actions for infringement of utility models and misuse of confidential information. They all come together. If you are looking to have one set of procedures for patent litigation you will end up requiring one set of procedures across the whole field of what is loosely called intellectual property. I suspect that although this is properly a political question, my own view is given the difficulty with the implementation of the 1975 version of the Convention this would be many times more difficult. (Sir Hugh Laddie) 1 have a different view. I know that we are all “old dogs” and it may take some time to teach us new tricks. I have no doubt at all that there are many well qualified lawyers and judges already in the Union who would be able to learn a new procedure if that was what was required. Furthermore, I have no doubt that with proper consultation a system which brought together most of the good points from the existing systems could be arrived at. I agree with Sir Nicholas that there is a problem with mixed actions, but in the end it may be that you will have to have a dedicated channel for patent cases and if they are mixed with other courses of action maybe spread them off. It seems to me that is a refinement, but I have no doubt that we could work a new system if a new system was necessary.