Are you ready for a fight? The debate on the unified patent system rages on

Last Friday (September 23) a conference on the proposed European patent litigation system was held at the Ministry of Economy in Warsaw in the framework of the Polish Presidency of the Council, and in the wake of a negative Court of Justice opinion regarding the system’s conformity with the EU treaties delivered on 8 March (Opinion 1/09).

Top of the list of speakers was Margot Fröhlinger, Director of the Commission’s Intellectual Property Directorate, who has been dealing with the patent proposals ever since her appointment in 2006. Mrs Fröhlinger was joined by a panel and indeed an audience of distinguished patent law practitioners, judges and academics, many of whom she had obviously met on a number of previous occasions. As I watched her meeting and greeting I wondered if the conference would be as ‘lively’ as I had been expecting, and whether she was expecting the same. After all, the debate over a European unitary patent system (in one form or another) has been raging on for over four decades now! Then I overheard her in conversation jokingly uttering the words ‘I’m ready for a fight’, and with that I stopped wondering. Fireworks were on the cards again and, joking aside, Mrs Fröhlinger was under no illusions about that.

The aim of the conference was to analyse how issues raised by the CJEU in its Opinion on the previous version of the Draft (International) Agreement on a European and EU Patents Court (EEUPC) had been addressed, and to ‘promote an exchange of views’ on the architecture and functioning of the EEUPC. The EU Patent itself was not a topic on the menu, although inevitably it would have to feature in the discussions.

It is difficult to overstate the significance of the EEUPC proposal. In the realm of intellectual property (IP) law, the creation of a unified patent litigation system is considered to be a sine qua non for the proper functioning of the proposed Regulation establishing an EU Patent, in relation to which the Council authorised enhanced cooperation (for only the second time in the procedure’s history) on 10 March – two days after the issuance of the CJEU’s opinion. If/when adopted, the unitary patent Regulation would constitute the fourth Optional Instrument (OI) in the area of IP law after the Community Trade Mark (CTM), the Community Design (CD) and the Community Plant Variety Right (CPVR), albeit with the difference that unlike these other OIs it would not be applicable in the entire EU, but only in 25 Member States (Italy and Spain are not participating due to the proposed linguistic regime). Moreover, from the perspective of general European law, the EEUPC would be unprecedented, as it would acquire jurisdiction not only over EU Patents but also European Patents (that is, ‘bundles’ of national patents in Europe) under the European Patent Convention (EPC) in lieu of national courts. As such, the EEUPC is a veritable venture into the unknown.

Given the pioneering and controversial nature of the EEUPC proposal, the finding of incompatibility with the Treaties by the Court of Justice did not come as a complete surprise. In fact I remember downloading it the day it was published thinking there was an outside chance of a positive opinion, but it soon become apparent that it was not to be. Following an insightful excursus into the background and essence of the European legal system (which in itself is worth the read), the Court reached the logical conclusion that ‘the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction…in the field of the Community patent…would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.’ This sounded pretty unequivocal to me, and it was difficult see how all of the Court’s objections could be overcome.

Nevertheless, on 14 June the Hungarian Presidency presented a modified Draft Agreement in which amendments had been made apparently ensuring compliance with the EU Treaties (this was generally confirmed by the Council’s Legal Service on 18 July). The main changes introduced were the limitation of participation to EU Member States only (i.e. excluding third states), and the strengthening of the EEUPC’s obligation to comply with EU law and to request preliminary rulings from the Court of Justice. This way the EEUPC would no longer fall outside the EU’s institutional framework, and the Court of Justice would not be deprived of its exclusive power to interpret EU law via the preliminary ruling mechanism. Yet I still could not see how the most fundamental of the Court’s concerns would be allayed; surely the EEUPC would still deprive the national courts of their powers of interpretation and application? The solution, it transpires, is based on a fiction. For the purposes of EU law, the EEUPC will be treated not as an international court but rather as a national court common to the Member States. Ingenious, I think you’ll agree.

The work of the Hungarian presidency has been continued in the latest Draft presented by the Polish Presidency on 2 September 2011, and it was this Draft that would form the basis of the discussions. At the start of the conference, however, the first expert speaker, Professor Tilmann of Hogan Lovells International, issued a plea to all concerned: concentrate on open questions only, as there is no need or inclination to revisit elements of the ‘package’ that have already been settled. In hindsight this may have been tempting fate, as it did not take long for the ‘settled’ issues to come to the fore. The proceedings before the future Patent Court (bifurcation or not?), the composition of the judicial panels (legally and technically trained judges or only the former?), the relation with the European Patent Office (EPO – a non-EU body) and even the very need for an EU Patent are all matters which have already been discussed at length over the years, but this did not stop the practitioners re-opening them, not to mention their re-dividing along national lines (particularly the English and Dutch versus the Germans, given the prevalence of and differences between their respective patent court systems). In fact about the only thing these practitioners did agree on was that the drafters’ return to CJEU involvement would be an additional weakness, as it could lead to significant delays in what should be a speedy judicial process. And as the discussions progressed so they became increasingly heated, with some participants becoming visibly upset!

Finally, it fell to Mrs. Frohlinger to try and make sense of it all, and what she said was intriguing. First of all, she was apparently less shocked by the harshness of the criticism (as she described it) than by its nature. In other words, she questioned why these points were being ‘dragged up’ again now, since the very same persons had not raised any such objections in recent consultations on the proposal. Secondly, this led her to another observation: maybe the reason is that they are starting to realise that something is actually going to happen! In short, she still seemed confident that all will be resolved. But when this will be remains anybody’s guess. According to the Polish Presidency, ‘the aim is to agree on a consolidated text of the draft agreement as a basis for a political agreement by the end of this year.’ So can we take this to mean that it will probably finally be adopted next year? Well, perhaps, but then again that’s what I said last year, and the year before that…

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A plea for research into Europeanisation (or fundamentals) of private law

Within M-EPLI there is a highly interesting discussion on the type of research we should be doing. Recently this debate centred around the question of the focus of the research and more particularly about the term Europeanisation. Although I had not intended this to happen, the discussion almost exclusively dealt with viewpoints in favour and especially against European integration and not with Europeanisation as a method of analysis.

The sentiment against integration is gaining ground fast in Europe. The Charlemagne blog of The Economist recently reported on the feeling that defenders of the Eurozone are running out of ammunition and ideas. Especially in the Netherlands this sentiment is gaining ground. Wilders, leader of the populist PVV (party for freedom), has stated (and said)he agrees with the 2012 budget cuts, but of course hastened to add that the Dutch 2012 budget is a Europe-centred document and that money would be better spent in the Netherlands than in Europe supporting Greece.

The sentiment is larger in scope than just financial affairs. Only a few weeks ago, the Dutch television news programme Nieuwsuur devoted attention to the very large number of foreign students at Maastricht University. Here Rick van der Ploeg, former State Secretary but now Professor of Economics at Oxford, voiced the unfairness of the fact that the Dutch government pays €6000 per student to supplement the €1700 yearly tuition fee foreign students already pay. Responses have been made elsewhere, but the sentiment perfectly fits the growing Euro-sceptic approach that seems to be thriving throughout Europe and especially in the Netherlands.

Europeanisation, however, has little to do with being in favour or against European integration. Instead, Europeanisation describes a process in which non-European subjects adopt a number of European features or where EU policy and economic dynamics become part of the national organisational logic. It is a process that is almost irreversibly ongoing and generally provides benefits, especially for European citizens. It is, most of all, a method of analysis that seeks to illustrate the effect of integration. European (Private) lawyers have for many years already paid attention to the legal aspects of Europeanisation. This concerns the harmonisation debate, with strong voices against current initiatives, but also the increased attention to internal market law and the effects this has on national legal systems. In European property law I have contributed on this, focussing on free movement of goods, services and capital and the possibility to remove restrictions to the functioning of the internal market.Instead of becoming Euro-sceptics, the latest wave of financial misery that is hitting Europe offers a perfect opportunity to rethink the research in European private law we are currently undertaking. It is a chance for European private lawyers to focus on the most important issues and adopt a more analytical approach to the integration process. Although we are awaiting the publication of the European Commission’s Common Frame of Reference, which will certainly lead to a debate on many technical (legal) issues, the ambit of European Private Law research should go way beyond the limited scope this proposal will take (the feasibility study of the Expert Group limits the proposal to sale of goods). Reiner Schulze and Hans Schulte-Nölke recently published a book on European Private Law; Current Status and Perspectivesin which they plead to enlarge the scope of the European Private Law debate. I would add to that that the focus of the research must change too. This change would lead to a shift from analysis of legal rules to the underlying policy issues and fundamental (legal) principles.

We would then compare these underlying issues and principles at multiple levels and see how they relate and how they influence each other. Europeanisation would so become more of a method of legal analysis that will allow us to create a better understanding of our own law as well as of foreign systems and systems of law at different levels. It will also allow us to collaborate with political scientists and economists in a different way and at a different level. We can then fully participate in the debate on the future of European integration and, if necessary, take a stance for or against integration, but with fundamental arguments and with less of a bias for our own national law.

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Teaching Comparative Law in Suriname

This summer I found myself teaching a course at the FHR School of Law in Paramaribo, Suriname. The course is part of a new curriculum developed by the School’s energetic rector Hans Lim A Po, a Leiden Law School graduate who –after his retirement – decided to establish a new academic institution in his home country. I thoroughly enjoyed teaching The Civil Law and Common Law Tradition: all 24 student were truly interested in hearing about differences among the two great legal traditions. This does not come as a surprise as they have to deal with these differences on a daily basis: all students, ranging in age between 25 and 60, are active as legal practitioners and are regularly confronted with other jurisdictions than their own. Suriname’s neighbouring countries are the civil law jurisdictions of French Guyana and Brazil and the common law jurisdiction of Guyana. More importantly, Suriname has many economic contacts with common law countries in the Caribbean. In this sense, I could put into practice what I recently advocated in a paper: only an international legal education prepares students properly for a legal career in today’s rapidly globalising world. In addition to this, the needs of Suriname are special in the sense that its legal development was always closely tied to the Netherlands, the country from which it became independent in 1975. Even today, the old Dutch textbooks of before the introduction of the new Dutch Civil Code (1992) are still widely used in Suriname, although the country could – if the political institutions would pursue this aim – play a role as a forerunner in the region by proposing innovative solutions to legal problems. Some say that Suriname should introduce the new Dutch Civil Code in the same way as the Dutch Antilles did. I would say this is a bad idea: the unique geographical position of Suriname calls for a more fundamental reorientation on the laws it wants to have and the foreign parties it wants to attract to its jurisdiction.

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M-EPLI Retreat 2011 – Research profile through the eyes of a newcomer

On September 1, the M-EPLI team held its annual retreat in Cadier-en-Keer. Enthusiasm was high amongst both members with a tradition in the Institute’s activity, but also new additions to the group, to discuss the future of the Institute’s research trajectory.

Steered towards the analysis and dissemination of the consequences of Europeanization and globalization in the field of law from its set-up, M-EPLI is now consolidating its research programme by focusing on themes which could govern M-EPLI events in the year to come. In the future, themes inspired by the context of Europeanization will bring resident but also guest researchers together within the framework of a conference held under the M-EPLI umbrella.

During the discussion sessions of the retreat, an interesting debate arose as to how even if it is focused on various fields of private law, such as contracts, property, legal theory, legal history or civil procedure, M-EPLI also interacts with other disciplines. Bram Akkermans emphasized the need to incorporate political science elements in property law research to improve the outcome of delivering value-judgments, while Kristel de Smedt’s economic background raised awareness with respect to impact assessments and economic consequences of harmonization. This led to the wider question asking what the role of legal research is in general. Sjef van Erp pointed to the importance of having contact with legal practitioners for input on issues arising from diverse legal activities, whereas Jaap Hage complemented the view by adding the dimension of theoreticians who work with the systematization of legal concepts on an abstract level.

The discussion also touched upon M-EPLI’s role in the activity of young researchers who join the Institute. Being in this latter category myself, I was impressed to find that M-EPLI invests extended resources in the creation of a nurturing environment for researchers who still need to fine-tune methodology or solve issues dealing with the interconnectivity of various areas of private law. From the perspective of a new PhD student, the fact that a generous segment of the M-EPLI membership consists of prestigious professors with international reputations is vital for the bulletproofing of new research. For this purpose, the Institute will continue to organize seminars and workshops with the goal of allowing young researchers to present and discuss their proposals in a creative environment which aims at inspiring them to polish their ideas.

The M-EPLI retreat proved to be a success not only in terms of team-building, but also by the overall shared view that in the years to come, efforts will be concentrated towards strengthening M-EPLI’s identity, role and contribution in and to the research world of European private law.

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