5 Overall conclusions
Process
THE APPROACH OF THE EU
176. We think the Polish Presidency was ill-advised
to rush the negotiations on this agreement with a view to a signing
ceremony taking place in Warsaw on 22 December. The considerable
economic consequences of the UPC, both for Member States and the
EU as a whole, are unsuited to a "quick-win" in the
final days of a Presidency, as events proved. Equally, we think
the Polish Presidency was ill-advised to prevent substantive amendment
of the re-draft of the agreement, as reported by the Government.[148]
177. We are surprised that Member States, including
the UK, acquiesced so readily in this negotiating process, particularly
in view of the widespread opposition to the UPC being voiced across
the EU, and at a high level. The consequence was that informed
third-party views were prevented from influencing the negotiations,
with stakeholders left feeling as if they had been excluded.[149]
This is far from a recipe for effective law-making, amply demonstrated
by the evidence we received.
178. It also gives rise to a wider concern about
the EU's approach to obstacles to implementation of its policy,
on which we have recently reported in relation to the fiscal compact
treaty for the eurozone.[150]
On this occasion it appears to be one of wilful ignorance, or
"see no evil, hear no evil"—remaining
committed to a solution to enhancing patent protection that expert
opinion almost uniformly thinks will significantly worsen the
current situation.
THE APPROACH OF THE UK
179. We were alerted to the prospect of political
agreement on the UPC in the Council on 5 December only shortly
beforehand, and not by the Government. When on 1 February we questioned
the Minister about the Government's stance at this meeting, she
said that:
I have with me, ringing in my head, the things
that the stakeholders have already said that they are worried
about and that they want us to fight for when we get there. You
would know that we have heard what the people who have given you
evidence the last time round¯the
lawyers etc.¯have
said and, in a lot of cases, we are very sympathetic to what they
have said, and we make those points when we get there. [...] that
was why we did not agree a deal when I was in Brussels at the
Competitiveness Council on 5 December; we felt that there had
not been enough discussion, and we did not feel we had a stable
text of the agreement long enough to assess it properly.[151]
180. Yet this was contradicted by the European
Council Summit Statement of 30 January, a draft of which the Government
would have approved, which stated that the EU intended to reach
"a final agreement on the last outstanding issue in
the patent package", the location of the Central Division.
When questioned on this Neil Feinson said he did not recognise
this as "being the situation in the negotiations"[152]
and that it was "a simplification";[153]
the Minister that it was a "broad statement".[154]
181. Despite assertions from the Government that
there was still scope for amendment of the agreement ("there
is scope all the way along for amendment [...] it does seem that
if you keep talking and if you stay in the room long enough, you
are likely to get the things that will help the process forward"),[155]
and that it was trying to make sure that Articles 6-8 were removed
from the unitary patent Regulation,[156]
there has been no amendment to the UPC agreement or the unitary
patent Regulation since 5 December. This is because of the reality
that such a move would not be supported by Member States.
We would have welcomed the Government saying this in oral evidence.
182. Our impression, overall, was that the Government
was not as candid with us in our scrutiny of this agreement as
we would expect. In the evidence session of 7 March we requested
the Minister to provide us with an update on the Government's
consultations with stakeholders;[157]
despite agreeing, nothing has been forthcoming.
183. Further, in evidence the Minister appeared
unwilling or unable to consider and assess the basis for the widespread
opposition to the UPC agreement. We found her responses formulaic,
or based on aspiration, and oddly detached from the practitioners'
perspective, despite words to the contrary. For example she commented
that:
He [Professor Sir Robin Jacob] seems to be quite
engaged by the whole thing. It [the UPC] is a great opportunity.
We are not going to sign off things that would disadvantage small
and medium-sized businesses, or even large businesses. The idea
is for us to see if there is a mechanism available that will make
it possible for us to better trade in the world. As we are part
of the European Community [sic],[158]
there is an opportunity here to try to get the system that we
have better.[159]
184. This should be contrasted with the statement
by Sir Robin Jacob, expressed in the final paragraph of his opinion
of 2 November 2011 on the UPC and unitary patent Regulation:
There is no time for anything other than plain
speaking. I am fortunate enough to have had wide experience, as
barrister, judge and now academic, with the patent system from
all angles. I have many contacts amongst users and lawyers. I
know of no one in favour of involvement of the CJEU in patent
litigation. On the contrary, all users, lawyers and judges are
unanimously against it.[160]
185. It should also be contrasted with the open
letter sent to the Committee by the SME Innovation Alliance, which
argues strongly for arbitration before a panel of technical experts
as an alternative to litigation before patent courts:
These processes will take yet another twist with
a Unitary patent through variations of meanings on any translation
of the native language should courts be employed—making
SME patent enforcement even less possible. Translating the claims
of a patent into a different language immediately offers yet more
language nuances that lawyers can pounce on given half a chance.
A court process will increase patent invalidity and produce less
infringement. None of this encourages growth and nor does it create
jobs, quite the reverse of what you have been told.[161]
CONCLUSIONS
186. Although the theory of
a unitary patent and unitary patent court in Europe has long been
thought desirable, the practice has long been elusive. The latest
attempt appears, regrettably, to be a further example of this.
Moreover, some of the criticisms raised by witnesses result from
traits that are so ingrained in the operation of the EU that a
legitimate question arises whether an effective unitary patent
can ever be achieved within the confines of the EU's internal
legal order.
187. We conclude overall that
the draft agreement on the Unified Patent Court is likely to hinder,
rather than help, the enforcement of patents within the European
Union. This will particularly be so for SMEs, the main intended
beneficiaries. Given our concerns, it is vital that the UK Government
adopts a strong position reflecting the concerns of practitioners
in final negotiations, as well as calling for the Central Division
to be in London in order to mitigate the most damaging effects
of a unitary EU-wide patent.
148 Qq 75 and 76 Back
149
See, for example, the final two paras of the submission of the
Intellectual Property Lawyers Association, Ev w3. Back
150
European Scrutiny Committee, Sixty-second Report of 2010-12, Treaty
on Stability, Coordination and Governance: impact on the eurozone
and the rule of law, HC 1817 Back
151
Q 73 Back
152
Q 80 Back
153
Q 80 Back
154
Qq 98 and 99 Back
155
Q 86 Back
156
Q 130 Back
157
Q 163 Back
158
The European Community ceased to exist on the entry into force
of the Treaty of Lisbon on 1 December 2009. Back
159
Q 105 Back
160
Ev 36 Back
161
Ev w12 Back
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