Draft agreement on a Unified Patent Court and Draft Statute

Written evidence from Henry Carr QC, Chartered Institute of Patent Attorneys, and European Patent Lawyers Association

We have been asked to comment briefly on the Minister's statement of 30 January.

· We note that the case made is political, rather than economic. Nothing at all is said about economics.

· The statement is strong on hopes, and weak on certainties. ("opportunity...for practice to converge" - Para 4; "intended to be self-financing" - Para 5; "expected to pool resources" - Para 6; etc. [emphasis added]). There are too many opportunities for things to go wrong.

· The danger from bifurcation is grossly underestimated. What has arguably worked adequately in Germany will not translate to Europe as a whole. No account is taken of AIPPI's point – that (wherever the Central Court goes) patentees will sue in Germany whenever they have the chance. Industry fears that this will encourage the strong to oppress the weak, and 'trolls' to make life miserable for everyone else.

· If the system proves not to work, we have no redress. A 'review' alone (Para 11) is not enough (reviews rarely change things much). Instead, the review should provide member countries the opportunity to change or leave the system.

· We repeat that in principle a unitary patent is a valuable objective, and much progress has been made. But there is too much wrong with this proposal as it stands. More time is needed to get important details right.

30 January 2012

Prepared 22nd February 2012