Tuesday, 7 June 2016

Europe, Utopia and the Unified Patent Court

The Unified Patent Court (UPC), billed on its informative website as "a single patent court covering 25 countries", is not yet functioning. Indeed, it is still some way from being kick-started into action. However, its existence and operation have suddenly entered the limelight. Two factors have brought this about.

The first is the debate over the prospect of the United Kingdom -- one of the leading participants in the new court and a major forum for patent litigation -- withdrawing from the European Union (the so-called Brexit). The UPC is institutionally integral to the European Union, being the forum for litigation of European patents with unitary effect, in addition to existing European patents. Bearing in mind that the UK Brexit referendum takes place in less than three weeks, on 23 June, the potential consequences of a UK withdrawal are inevitably a matter of concern to patent practitioners, owners and investors [the UK's Chartered Institute of Patent Attorneys has been actively involved in the Brexit debate, as indicated in an earlier Aistemos post, here].

The second reason why the UPC is so closely discussed right now is the fact that this year's Intellectual Property Business Congress Global 2016 has been taking place in Barcelona -- a European venue but also a Spanish one: Spain, it should be remembered, is a UPC denier and has not signed the UPC Agreement. This has led to further reflections about the UPC, both from non-Europeans coming into close contact with those who are immediately concerned with the new European patent regime and from those who speculate as to how Spain, as a non-UPC jurisdiction, and the UK as a possible non-EU member, will fare. What advantages might these jurisdictions offer, and what detriments might they inflict, on patent portfolio management and the mechanics of enforcement in what might be described as idiosyncratic excrescences of the global economy?

This blogpost does not propose to take sides in the Brexit debate or to rule as to the wisdom or otherwise of participating in the UPC. It seeks only to offer a warning. Many people are expressing opinions as to the likely impact of the new system, adding value judgments as to whether the changes will be good or bad for patent owners, investors and others. Some paint a Utopian picture of efficient and cost-effective pan-European enforcement; others offer a system from Hell (illustrated, left).

However respected and experienced the authors of these opinions may be, those opinions lie firmly in the realm of speculation and not informed opinion. They are sizing up a court that does not currently exist, and which has no immediately relevant body of binding precedent upon which to rely when addressing substantive and procedural issues. This court will be operating in a common market in which the EU's supreme judicial body -- the Court of Justice of the European Union -- has made it plain that the principles of European competition policy take precedence over the enforcement of private monopoly rights.

We do need to know how patent strategists, litigators, portfolio managers and investors think, and their insights can be valuable.  But we also need a lot more firm information before we can obtain a clearer view as to whether this carefully-planned and extensively revised scheme for litigating Europe's patents is better, the same as or worse than the patchwork of national courts that preceded it. 

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