25 November 2007

EU commission’s lethargy on EPLA criticized

EPLA proponent Jochen Pagenberg delivers fierce criticism on lack of progress on EPLA. Will the European Patent Litigation Agreement have a chance in 2008? Read his critical review in "International Review of Intellectual Property and Competition Law (IIC) 2007, 7).

He seems not particularly optimistic:

"Industry is certainly not willing to waste another year in fruitless discussions. If nothing happens, it will be better to drop EPLA and the Community patent for good - sooner rather than later. The Community patent will be even more difficult to adopt politically because the involvement of all Member States is indeed necessary. But the Community patent should be easier to discuss, when Member States have experience of how EPLA operates. Therefore, if EPLA is not achievable, it would be preferable to maintain the status quo and not even to start on an overhaul of the Community Patent Regulation. None of the Member States and nobody in the Commission will be willing and able to prepare any paper that could even come close to the detailed content of the EPLA draft. Therefore it must be feared that participants will grow tired of continuing discussions on one small item after another - and no end in sight."


Anonymous said...

Pagenberg is right to be pessimistic. But anyway, he would be, wouldn't he? He's a German patent litigator, looking forward to all the first instance EPLA action in Duesseldorf, then on to the appeal, in Luxembourg just up the road.

Remember when the subject for discussion was whether to set up a pan-European patent granting authority? Few thought the idea would take off, so the vested interests didn't resist too much, and the EPO was born. Remember back then, there was to be pan-European patent dispute resolution too, but the vested interests were too strong, so that part was postponed. Today, the vested interests are so much stronger because 1) multi-national patent litigation is more common and for higher stakes and so makes nicer profits for private practice lawyers, but 2) the filing and prosecution business has been collared by the Brits and the Germans with only the crumbs falling from the table (opinions, translations) for the other countries to stave off starvation. The Germans and the Brits will clean up, in the litigation business too, won'tthey? So, by my reading, no chance of a majority vote from the member States for EPLA. There's a "Prisoner's Dilemma" here too. I would give something up, if all the others do too, but I don't trust them, so I won't give up what I've got already. Meanwhile, with one fiasco after another, like Conor, and Unilin, the goal of "The world's most competitive economy" drifts further and further out of reach, to the detriment of every citizen of every EU member State. But maybe there are more important things, that we should rather hang on to, than surrender them in a hopeless attempt to out-compete the Asian countries? And anyway, cases like Conor bring forward the day when courts all over Europe come to the same view on novelty, and obviousness, and sufficiency. After that, legal certainty brings the gain in competitiveness, even without EPLA.

zoobab said...

"multi-national patent litigation is more common"

Can you provide a list for cases in Europe?

As far as I have digged, the cases are not raining.

Anonymous said...

The cases are not raining because, in England at least 95% of them settle in the year between issuing proceedings and the trial. Those who litigate patents in Europe know the cases though.