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How should a unified patent court work?

Who will be the judges? What role should the Court of Justice of the EU have? Will there be more bifurcation? And would you like to become a European patent judge? These were just some of the questions addressed by litigation specialists in a panel discussion

The AIPPI Congress panel, chaired by Nicola Dagg of Allen & Overy, brought together two judges, a litigator and an in-house lawyer to discuss the latest developments in the long-standing project to create an EU unitary patent and unified patent court. It was probably no surprise to the audience that they could not agree on many points.

Peter Meier-Beck, of the German Federal Supreme Court, said the most important question for the proposed court is: who will be the judges? “I hope the judges will be the best available on the market, but I worry that political proportionality may play a role,” he said. Chief Judge Randall Rader of the US Court of Appeals for the Federal Circuit agreed: “Pick your judges according to their merits. I can think of 15 or 20 who would be very good. It’s probably no surprise that they’re all from England, Germany, the Netherlands or France.”

But Thierry Sueur of Air Liquide said he believed that skilled judges would develop with experience, even if they were not available to begin with. “In the beginning of the EPO, we were worried about the standard of examiners. Now we don’t mind where they come from.”

CJEU controversy

There was further disagreement about the inclusion of Articles 6-8 in the Treaty, which some fear would give the Court of Justice of the EU (CJEU) wide scope to hear patent disputes. Rader warned that Europe was risking a “calamity” by giving non-specialist judges the power to interfere in “the fine art of jurisprudence”.

He added: “I teach international patent law and in my experience the worst decisions all come from the supreme courts, in whichever country. They are not expert and have no understanding of basic principles.” Jochen Pagenberg of Bardehle Pagenberg added that the delays at the Court of Justice, and the risk of unclear judgments, would lead to unpredictability. That is one of the reasons why he opposes the current proposals.

But Meier-Beck cautioned that under the plans the CJEU would only be able to hear questions referred to it by lower courts, and he suggested that having a unified patent court would reduce the need to refer questions. And Sueur said that the risk of problems at the CJEU is a price worthy paying for a more efficient system: “Of course we don’t want the CJEU to put their hands in everything. But we are part of the EU scheme and we have to be cautious.”

Bifurcation battle

One of the most contentious aspects of the plans is that they provide for the possibility of bifurcation, where validity and infringement of the same patent are heard separately. While bifurcation exists in Austria and Germany, it is seen as problematic by lawyers in many other countries. But Meier-Beck said his personal view is that there would not be much bifurcation under the proposed system, while Pagenberg said the flexibility of a bifurcated system might even tempt English courts to send validity hearings to the proposed central division. “The new America Invents Act in the US introduces a form of bifurcation, with the post-grant review system,” he noted.

As well as taking questions from the audience, Dagg took a straw poll with a show of hands: she estimated that a narrow majority preferred the status quo rather than the proposed unified court. But, said Sueur, that may be because the room was full of lawyers: “Maybe it would be different if we asked IP owners what they want.” He emphasised that the current fragmented court system is a drawback and costs industry money. He admitted the court proposals were not perfect, but said: “I think this is the price to pay to have a better system.”


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