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 Hacking Contd] the pan-European appeal court into the national courts so that they also have similar, if not the same, procedures and a similar evidential basis? (Sir Hugh Laddie) I have no problem with that. What I am saying is that if you have a pan-European court of appeal, that would be a necessary consequence of it, but it means that you have to agree that there shall be standard procedures, standard rules of evidence and so on throughout all the Member States in their national courts, at least in relation to patent cases. Of course, if you leave it just like that, with national courts dealing with first instance cases, you still have the problem of the Italian Torpedo. You will still have people who will choose a tribunal, maybe not primarily because it will get to the right answer quickly but maybe because it gets to the wrong answer slowly, and that is a problem. But you are quite right, of course. If you have a pan-European court of appeal, eventually you will have to have cases fed to it which have more or less the same sorts of rules and procedures in them. Chairman 223. Could I ask, if you were faced with a choice of either having national courts doing the patent actions for the Community as a whole, with a right of appeal to the pan-European court of appeal, would you rather have the present system or would that be acceptable as second-best? (Sir Robin Jacob) It is very difficult to predict the answer to that. I suspect you might be better off with the present system. I am not sure it would really work. I was going to draw an analogy with what happened with the Americans. They had nine federal circuits all operating under the same rules and procedure, with appeals from the judge of first instance to the federal court of appeal of that circuit, with only very limited appeals to the Supreme Court. They found that even operating under nominally uniform rules people were forum-shopping all over the place with exactly the same sort of thing: applications for declaratory judgments and so on in an anti-patentee federal circuit. So they found it necessary to create a special court of appeal, but that, of course, operates on the basis of evidence taken by whichever federal court has taken the court of first instance under the rules which they all understand and know. To work a court of appeal where the system for taking evidence in the courts below varies so widely—some countries do not have systems for taking evidence as we know it at all— would be very difficult. Take validity, for example, in some places but not others the court supplies the expertise and decides whether the patent is valid or not. That is basically why the European Patent Office ignores outside evidence. So that sort of halfway house I think is not worth going for myself. (Sir Nicholas Pumfrey) 1 agree. (Professor Judge Brinkhof) So you prefer the actual situation? (Sir Robin Jacob) Compared with just a federal court of appeal. (Sir Hugh Laddie) 1 thought the question was, would you prefer the current system to a court of first instance set-up. 224. No, the question was, would you prefer the current system to giving pan-European jurisdiction to the national courts with a right of appeal to a federal court of appeal? (Professor Judge Brinkhof) Do you mean the actual situation under the Munich European Convention? Do you mean that or do you mean Community patents? 225. No, I mean a Community patent dealt with nationally at first instance but with a common court of appeal. (Professor Judge Brinkhof) Yes, and the national courts having the jurisdiction for the whole Community? 226. For the whole Community.” [(Professor Judge Brinkhof) Yes.] (Sir Robin Jacob) 1 do not believe industry would even accept it or even be interested in it. 227. Because they would regard it as too insecure? (Sir Robin Jacob) Yes. (Sir Nicholas Pumfrey) The confidence of industry is crucial in this particular issue and if there is a possibility that there is an unreliable jurisdiction with the ability to destroy the patent right for the entire Union, it cannot be acceptable. (Sir Robin Jacob) Even with an appeal. Chairman] I thought that was your position. Lord Hacking 228. My Lord Chairman, if I understood the evidence correctly, the choice is between carrying on, unsatisfactory though it is, in our present way or creating a unitary system both at the appellate level and at national court level? (Sir Hugh Laddie) Which is undoubtedly the best choice, yes. (Sir Robin Jacob) But I think in my discussions— and I probably have more discussions except for Jan Brinkhof with other judges—we have all been driven to that conclusion. There is quite a drive amongst some of the judges to say, “All right, we had better start drafting the rules and procedure of this system.” 229. May I ask, if you were to have your favoured solution, how could we integrate it into the court structure of the European Union, because there is not a lot of room for manoeuvre without having another European Treaty? (Sir Nicholas Pumfrey) As 1 understand it, if you were to step outside the competence of the current CFI, a further Treaty would be necessary. That seems to me to be inevitable and the preferred route. It is the preferred route to have another Treaty to establish a complete jurisdiction, because if that has to be done, if I can put it this way, it has to be done properly. The other thing that can then properly be considered is the question of financing, because if this becomes a large undertaking only enterprise, the patent route as a whole will not be doing its entire job. The position of SMEs in this particular area must not be ignored, and if there are to be Community-wide patents affecting the economic activities of SMEs, it is essential that