26 March 2012

Will Unified Patent Court be Trifucated?

In this article of 22 March 2012 Partners of London based law firm Bristows report on a new compromise approach by the Danish EU Presidency to resolve the current deadlock in the question as to where the important  Central Division of the future EU Unified Patent Court should be located (see earlier postings here, here, or here). Currently, the most promising candidates to host the Central Division are Paris, London and Munich:  

Intriguingly, the Danes have floated a possible sharing compromise, that is to say that there could be three Central Divisions, or perhaps more accurately, a co-located Central Division
Unfortunately, the article does not cite any source for this interesting information. So if anybody happens to know more about it, please let me know.

The article goes on the speculate on possible case allocation schemes of such a trifucated Central Division:
For example, would each branch of the Central Division be able to hear all revocation cases, and hence operate in all three languages? Or would the London branch deal with revocation cases for English language cases, Paris with French ones, and Munich with German ones? And if not, how would the Registry, where all cases must be begun (apparently promised to Luxembourg), distribute business? Would the parties have a say? Would it be done by chance with cases going to each branch of the Central Division on a Buggins' turn basis? Would we see a German language patent being litigated between two German companies in German, in Paris or London because the German division hearing infringement had decided to bifurcate its case and it was not Munich's turn to be allocated a validity case? 
What appears clear is that even if due to the French Presidential Elections official steps are highly unlikely until the 30 May Competitiveness Council meeting , back-room negotionations and lobbying of stakeholders will continue unabated.

22 March 2012

The new 'Handbook of Quality Procedures' explains the Complaints System at the EPO (Update)

The new "Handbook of quality procedures before the EPO" (pdf, 780 KB) adresses
  • the practice of applicants and representatives 
  • the practice of examiners, in particular how the examiner should best carry out examination so as to reach a decision in a reasonable time while dealing openly with parties to the proceedings; 
  • the practice of formalities officers, particularly focusing on interaction between formalities officers and applicants; and 
  • how complaints are dealt with at the EPO. 
Even though it is not binding either on the EPO or on users and their representatives, it gives some interesting insight into the workflow the EPO wished applicants and representatives to follow (cf. also here).

One of the more interesting issues for practitioners can be found in Chapter 8, "Complaints", pages 49 and 50, sketching the following:
The importance of making a complaint. Anyone dissatisfied with the services of the EPO, whether or not he is a party to the proceedings in question, is encouraged to make his dissatisfaction known to the Office. The EPO takes feedback seriously and strives to use it as a basis for continuous improvement. There will be no negative consequences for the complainant merely because he files a complaint.

The EPO will investigate all complaints. [...] Once a final decision has been taken or an application is withdrawn, it is too late: complaints are best made as early as possible.

Procedure for making a complaint. Complaints can be submitted to the EPO by any convenient means. Written complaints are easiest to deal with, especially if sent by e-mail direct to Directorate Quality Management Support [..] at dqms@epo.org. If a complaint is contained in a response filed in connection with a particular application, the response must be filed by the official means, preferably online. In this case, the complaint will be investigated more quickly if a copy of the response is sent by e-mail to DQMS.

[...]

How the EPO handles complaints. All complaints are investigated and followed up internally within the EPO.

Directorate Quality Management Support (DQMS) is responsible for dealing with complaints. DQMS is a department outside the operational line. It looks into the case, together with the head of the department responsible for the case in question, to establish what has happened, whether the complaint is justified, and whether followup action such as a change in procedure is needed. It reports annually to the President of the EPO on complaints received.

Response time. DQMS aims to reply to complaints within 30 days. In the rare cases where it cannot manage this (e.g. because of extensive consultations), the complainant will be kept informed.

Limitations. The treatment of complaints takes place outside the scope of the normal patent procedure. Although DQMS investigates all complaints, it has no authority to influence or review the legal decisions taken by other EPO departments.

DQMS normally provides complainants with feedback on the results of its internal investigation. In a few situations, this may not be possible, for example if a binding decision has already been taken, or if other parties are involved.

In the interests of legal certainty, DQMS can advise other departments to issue corrections or refund fees only if there is a legal basis for them to do so. In particular, the valid payment of a fee has a legal effect, so a refund is usually not possible unless a mistake has been made.

Making a complaint is not a substitute for available legal remedies. if the procedure provides for means of legal redress in a given situation, the complainant may consider following these in parallel with complaining to DQMS. A complaint related to a specific application will be added to the electronic file. If it contains material which needs to be taken into account in the procedure, it will be placed in the public part of the file.  
Update (23.03.2012): Even though the new Handbook has been officially published just now (1st edition, March 2012), it has been published on the EPO website for only one or two days already in February 2012 and then withdrawn.

Apparently, the EPO wasn't convinced of the February version of the Handbook. The only differences between the two versions though lie in the Foreword/Introduction part of the book. While passages of the February version relating to the aim of the book and the duties of the EPO and representatives
[...] The aim of this document is to provide further non-prescriptive guidance and information on how proceedings between the EPO and its users can be conducted in ways conducive to a high-quality process. [...]

[...]

The EPO has a duty to process and examine European patent applications. It is to its own benefit and to that of users and third parties that it conducts the granting procedure as efficiently as possible, while maintaining its long-standing commitment to quality.

Representatives have a duty to serve the interests of their clients or principals as best they can while complying with the European Patent Convention (EPC) and professional standards. Users involved in the patenting process at the EPO vary from individual users through small and medium-sized enterprises to multinational companies, all of them subject to different financial constraints and IP policies. They also operate in a variety of technological areas which have different time frames and exploitation potential. In proceedings before the EPO, both users and the EPO can adopt many different procedures while complying with the EPC. This document provides indications of quality-building practices which reflect those already applied in the majority of cases by EPO staff and representatives alike. EPO. This document indicates some of the procedural consequences of taking such different courses.
do not anymore show up in the March version, the cooperation of EPO, epi, and BusinessEurope is now addressed more euphorically ("hallmark") and the aim/intention of the Handbook is expressed differently and slightly broadened:
Its intention is to help to increase the quality of incoming applications, communications from examiners and submissions from parties, as well as to provide for an efficient prosecution. It may also serve as an orientation for attorneys who have less experience with the procedures at the European Patent Office and for candidates preparing for the European Qualifying Examination.
Theses amendments do not appear to be the result of highly political back room issues and surely do not qualify conspiracy theories at all. For emphasising the cooperative approach of the project it certainly was a good idea to cancel the two paragraphs on the duties, especially since the duties of the representatives were four times longer that those of the EPO.  


 (photo 2009 by Life As Art via Flickr under a CC license)

21 March 2012

After opposing ACTA, will Poland also turn against EU Unitary Patent?

Polish MPs protesting against ACTA
In the European Union, the brave citizens of Poland were among the first to stand up against ACTA when their government announced on 19 January 2012 to ratify the controversial agreement. The public protests began on 26 January 2012 and on the same day some politicians expressed their protest in Parliament by wearing Guy Fawkes masks during the debate.

In the end, Donald Tusk, Prime Minister of Poland, abandoned ratification on 17 February 2012 and declared that his earlier support for ACTA was a mistake. He even sent a letter to fellow leaders in the EU urging them to reject ACTA as well.

Now it appears that Polish professionals consider the legal instruments against alleged infringers as provided by the Unitary Patent Regulation similar, or even more dangerous for entrepreneurs and SMEs than the regulations of ACTA. Also it is again critisised that the translation arrangement would disadvantage especially smaller Polish entities.

In an article on the Kluwer blog we now learn from Krystyna Szczepanowsk that another opposition is growing in her country, this time against the Unitary Patent Regulation, despit the fact that the Polish EU Council Presidency put a lot of effort into the project in the second half of 2011. She observerd the following:   
In the light of the recent strong criticism of the unitary patent system in Poland, one could ask whether the Polish government may subsequently opt for “compromise” agreements, or whether it will join with the positions presented by Spain and Italy.
Many interest groups in Poland have recently criticized the proposed regulations on unitary patent protection and have called on the government to withdraw its support for them. This initiative has officially been taken by members of the Polish Chamber of Patent Attorneys, but it seems that it has also found many enthusiasts among economists, scholars and politicians, including members of the Polish Parliamentary Commission of Innovation and New Technologies.

The Polish Chamber of Patent Attorneys claims that the European regulations favour companies from the United States, Asia and large European corporations. Therefore, given the fact that Polish industry is still developing, adopting a unitary patent system could kill off innovation in Poland. Some scholars claim that according to the proposed regulations, the number of patents valid in Poland would increase by an additional 60,000 annually. Since these patents would be written either in English, French or German, Polish entrepreneurs would be responsible for their translation in order to check whether they are not committing any infringement. 
Ms Szczepanowsk concludes that
one could speculate that due to the negative buzz created by the controversy surrounding the ACTA-Agreement, the Polish government may, in the future, withdraw its support for the concept of a European unitary patent system, just as it did with the ACTA-Agreement in response to massive public demonstrations
The current reservation against the translation agreement in Poland does not fall from the sky but is consistent with the Polish opposition against the adoption of a language regime according to Art. 14 EPC (DE, EN, FR) when the country was among the most reluctant countries together with Spain and Italy in the days before the decisive Council meeting of 10 December 2010. The latter two countries finally prevented a pan-European solution which, in turn, was the reason for the establishing an enhanced cooperation approach.

Poland's attitude towards IP rights might anyway be rather reserved, as could be learned from the country's opposition against the highly controversial Software Patents Directive in 2004 

20 March 2012

Federal Government continues on all Levels to advocate Munich as Seat of the Central Division

As recently reported on the ksnh::law blog in an article titled "German Federal Government Strongly Advocates Munich as Seat of Central Divison of EU Unified Patent Court" (Deutsche Fassung hier), a written parliamentary question in the German Parliament/Bundestag by MP Doris Barnett (Social Democrats) gave the Federal Government the opportunity to take a public position on the efforts undertaken to bring the seat of the Central Division of a future Unified Patent Court to Germany (question 50 of Drucksache 17/8723; in German). Dr Max Stadler, Parliamentary State Secretary to the Federal Minister of Justice under Minster Sabine Leutheusser-Schnarrenberger (both Liberals), answered the question as follows (cf. Plenarprotokoll 17/161, page 1919 onwards; in German):

[...] The Federal Government strongly advocates in the negotiations that the seat of the Central Division will be in Munich. As the European capital city of patents Munich is best suited for the headquarters of the Patent Court. The European Patent Office, which will grant EU patents, has its headquarters here. The required technical skills of judges and attorneys/lawyers are available here in particular. France has also applied for the seat (Paris). The overall agreement largely depends on the seat of the Central Division. The Federal Government will continue on all levels to advocate Munich as the seat of the Central Division.

The decentralized structure of the Court provides that patent infringement cases are brought before Local or Regional Division residing in the Member States. It can be taken for granted that the Local Divisions located in Germany will have a significant proportion of the total volume of litigations.
The German version of this posting can be found on ksnh::jur under the headline "Bundesregierung kämpft für München als Sitz der Zentralabteilung der EU-Patentgerichtsbarkeit".

While the German government claimed the seat of a European Patent Court already in the times of the "Community Patent Convention", London wa put on the agenda only upon intervention of the UK legal profession and Paris was considered a compromise location to prevent a deadlock. However, as has been  summarised recently “few other EU countries are happy with a Munich seat because the city is already the home to EPO“, “Britain lacks goodwill and allies“, and “French inflexibility has been damaging“ (see here). 

As analysed in the article "Munich or London? The new EU Patent System will now have to be saved by Angela Merkel and David Cameron personally", the Germany government's chances to succeed in this game depend on political dynamics, the current distribution of political (and economical) power within the Union, and Ms Merkel's personal determination to this issue - which factors might not necessarily argue against a German seat. In the end, however, this issue may well be decided by the traditional EU horse trading negotiation strategy, as the seat issue may be considered a perfect negotiable quantity in more important political projects, such as controversal measures suggested to overcome the historic financial and debt crisis.

Even though there were some speculations that an agreement may be achieved at the informal financial Council meeting on 30 January 2012 in Brussels (see tweets here and here), it wasn’t a big surprise that the Heads of Government have had enought to do with stimulating growth in Europe and finalizing/promoting the ESM and fiscal compact. As to the patent issues, an official statement at least clarified that
The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package.

19 March 2012

German Patent Law Capacities Divided Over Articles 6 to 9 of the Unitary Patnet Regulation

In an article titled "In Defense of Articles 6 to 9 of the Unitary Patent Regulation" on the ksnh::law blog we discuss the diverding expert opinions of renown law Professors Rudolf Krasser (Max Planck Institute for Intellectual Property) and Winfried Tilmann (Hogan Lovells LLP and Member of the Rules of Procedure Committee according to Article 22 UPC Agreement) concerning the attractiveness of the Unitary Patent and the question of whether or not Articles 6 to 8/9 should better be removed from in the  Unitary Patent Regulation.

Even though the Unitary Patent Regulation has already received green light from the EU Parliament’s legal committee (JURI) in late December (see press release) and the EU Council already began to linguistically finalise the Regulation text in early January, this highly political issue will presumably not disappear from the agenda as long as the Unified Patent Court Agreement is stuck over the question of which EU member state will receive the Central Division of the EU Unified Patent Court (see e.g. here, here, and here).

While Prof. Tilmann (opinion here) defends the current version of the Unitary Patent Regulation, Prof Krasser (opinion here) articulates the concerns of a strong and illustrious ‘opposition movement’ of legal professionals and their associations (e.g. EPLAW and Jochen Pagenberg, European Patent Judges and Sir Robin JacobProfessor KrasserCIPA), industry representatives (e.g. ICCIP Federation), and a few politicians (e.g. JURI member Cecilia Wikström (SE, ALDE) [123] and UK IP Minister Baroness Wilcox), all of which demanding Articles 6 to 8/9 to be removed from the Regulation to prevent substantive patent law from becoming subject to review by the European Court of Justice via referral questions according to Article 267 TFEU.