Unified Patents Court - One Hurdle Cleared; Many more to go...

This moggy has been posting a lot about the Unified Patents Court (and indeed the Unitary Patent) this year.  He tries not to post every little development, but now a few have come along and it seems time, dear readers, to give a little update.

Alas the wheels of EU legislative process are largely hidden from mere moggies and it is not always easy to see what is going on until after the event.  But on Friday there was released this Press Release from the European Commission, announcing that "Justice Ministers have today reached agreement in record time on a European Commission proposal to complete the legal framework for Europe-wide patent protection."  This is the need to amend the Brussels Regulation to accommodate the UPC framework.  This hurdle required to implement the UPC was reported by the IPKat back in January, but generally does not seem to have received the attention it deserves.  Speculation that the necessary amendments would take some time to achieve, although not ill-founded, now probably needs updating since the reported agreement has been reached in "record time".

According to the press release, "The Parliament’s Legal Affairs (JURI) Committee is expected to vote on its report in February 2014, with a final plenary vote expected the following month."  So this is all likely to be done and dusted rather quickly.  This amending legislation is largely technical in nature, so it is not likely to be the forum for controversy over the UPC and the Unitary Patent as such to be aired.

Naturally the press release contains the usual misleading drivel.  At this paragraph the IPKat wept:

The figures speak for themselves. In the United States, in 2011, 224 000 patents were granted, in China 172 000 while in Europe only 62 000 European patents were delivered. One reason for the difference is the prohibitive cost and complexity of obtaining patent protection throughout the EU’s single market. At present, someone seeking to obtain Europe-wide protection for their invention has to validate European patents in all 28 EU Member States. The patent holder may become involved in multiple litigation cases in different countries on the same dispute. But this will change in the near future thanks to the agreement on the unitary patent package.

How may people reading this will conclude that there will be no change at all in the procedure from application up until grant, and that the post-grant procedures will probably also be more expensive for the Unitary Patent than a current European patent validated in UK, France and Germany only, which is the comparator most relevant to actual current practice?

This Kat has also been reporting on the progress of the selection of appropriate judges for the UPC.  He has heard that 1300 expressions of interest have been received, and are being considered by the Advisory Panel, chaired by Sir Robin Jacob.  This moggy was fascinated to read this blog by Miquel Montañá, Clifford Chance pointing out that "Not one single candidate out of 1300 applications fulfils the conditions required to be a candidate judge at the UPC".  How can this be? Well, until the UPC comes into force, it has no "Contracting Member State" and so the requirement to be a national of a "Contracting Member State" as defined cannot be fulfilled.  The IPKat is pretty sure that this can be overcome pro tem by creative interpretation, or "Purposive construction" as we call it in the UK.

What does not yet seem to be clear is according to what criteria the 1300 expressions of interest will be evaluated (beyond the black-letter statutory criteria).  Will transparency in EU lawmaking procedures is too much to hope for, at least the evaluation of the judicial appointments could perhaps be clear to all.  Merpel has been dispatched to the corridors of the Preparatory Committee and other organs of interest, and will report if she finds out anything of interest to our dear readers. But naturally both Merpel and the IPKat welcome any news whether by posting comments or by email.