Examination of Witnesses (Questions 33
- 39)
MONDAY 10 DECEMBER 2007
Mr Kevin Mooney
Q33 Chairman:
May I welcome to the second part of our evidence session Mr Kevin
Mooney who is a Senior Partner with Simmons & Simmons, and
an expert in this field. Rather than go straight into questions
Mr Mooney is going to help the Committee because I think some
of us are not wholly up to date on what the present position is
on how you register intellectual property in Europe and how you
protect it, what the shortcomings are and in general terms what
the new Treaty foreshadows in terms of improvement.
Mr Mooney: I am afraid that there are a variety
of different intellectual property rights and inevitably the means
of obtaining those rights and enforcing them differs significantly.
Probably the most important intellectual property right and I
think most relevant for our discussion this evening is the patent
monopoly. At the moment the means of obtaining a patent are quite
complicated. There are in fact two options. A company who makes
an invention can apply to a national patent office and obtain
a national patent. That is a national right which is enforced
through the national courts. Alternatively there is a convention
called the European Patent Convention, of which most European
states are now members, with one or two exceptions. The inventor,
rather than applying to each Member State's patent office can
apply centrally to the European Patent Office in Munich. He prosecutes—that
means he argues for the grant of the patent—in Munich and
if he is successful he then designates which Member States of
the European Patent Convention he wishes his patent to have effect
in. The patent is treated as an individual national patent in
each of the designated Member States. Whichever route you follow—the
national patent offices or the European Patent Office—you
end up with a national right which has to be enforced nationally
in each and every country. That is the patent monopoly. It is
different with a trade mark because there now exists within the
Community a Community trade mark and it is possible to apply to
the Office for the Harmonisation of the Internal Market (which
is effectively a Community trade mark office in Spain) for a Community
trade mark right. Alternatively, you can get national trade marks.
The most important thing is that there is no Community patent
right existing at the moment, although they have been trying to
create one for 30 years now. I am happy to amplify on that; there
are other intellectual property rights but those are the two most
important ones.
Q34 Chairman:
If there has been a breach what is open, for example, to a British
company that sees that two or three European companies are breaching
a patent or exploiting it without permission?
Mr Mooney: The company must enforce its national
right in each of those states through the national courts of that
state which is obviously expensive, time consuming and some would
say unnecessary.
Q35 Chairman:
For the benefit of the Committee, what does the Treaty do in your
judgment and what does the Treaty not do?
Mr Mooney: At the moment the Commission under
the Portuguese Presidency are working very hard to try to make
progress on establishing two things, firstly a central community
patent court in which it would be possible to enforce this bundle
of patents from Munich in one place; a central patent court in
Europe. The Commission, also working with the current Presidency,
has now decided to have another go at the creation of the Community
patent right. Those are two things that are being actively pursued
at the moment. In the past it has failed largely because of language
arrangements, which we will talk about in a moment. The current
proposal to amend the Treaty will not, I think, have a significant
effect on the success or failure of these efforts and I can explain
that if you would like me to.
Q36 Chairman:
Yes, please do so; that would be very helpful.
Mr Mooney: Up to now the legal basis for creating
new Community rights has required unanimity. The new article,
Article 97a, provides for the ordinary legislative procedure in
most cases, in other words qualified majority voting. However,
as an exception to that the language arrangements—if there
are language arrangements—must be passed by unanimity in
the Council. The key to both the Community patent and this centralised
European court jurisdiction are language arrangements. I am happy
to amplify on that if you would like. In effect unanimity will
still be required to get the Community patent right through.
Q37 Chairman:
That looks like a major stumbling block in terms of making any
progress.
Mr Mooney: Yes, except that the language arrangements
which were recently considered by the Community were effectively
blocked by a number of countries and it seems to me that even
under qualified voting there is at present a blocking majority
for what most people want to do.
Q38 Chairman:
Is there any precedent, certainly in commercial law in Europe,
if there is a consensus of, say, a majority of states agreeing
to the establishment of this patent court and therefore the language
provision supporting it simply going ahead with that small group?
That is antipathetic to the history and tradition of the operation
of the European Union.
Mr Mooney: There is a procedure called enhanced
cooperation and at one time a number of Member States did suggest
that it would be possible to take advantage of this procedure
(which I am sure Mr Bretz knows better than I) so that a number
of likeminded Member States who wanted to set up this centralised
court under a three language regime—English, French and
German—could go ahead. Unfortunately that was lost as a
result of two things. Firstly, the Community legal advisors said
that a patent court is an area of mixed competence and the Commission
and Community must be involved. Secondly, France, Portugal, Spain
and Luxembourg said that they would not agree to a three language
regime. For the regime, which a number of countries wished to
pursue with a limited language regime, there was a blocking majority.
Q39 Chairman:
In your judgment, if there was to be the chance of unanimity,
what is the minimum number of languages that we might be able
to get away with?
Mr Mooney: The current Community proposal entitles
each Member State of the Community to have a chamber of this court
on its own territory and therefore if that happens—to the
extent that that happens—the language of that court will
inevitably be the national language. The proposal also provides
for regional chambers where two or more countries can get together,
so to speak, in which case it is for those countries to decide
which language will be the language of that regional court. The
answer is that we do not know. It is conceivable but unlikely
that every Member State will want to have a chamber of this court
on its territory in which case we should have all the languages,
but the Commission has provided an economic incentive for them
not to do that. If they want to set up their own court with their
own language then they pay for it. If, on the other hand, a regional
court is set up, then the Commission will contribute towards the
cost of the court. At the moment it is difficult to say how many
languages this court will operate in, certainly 22, 23, 24 official
languages would be unfortunate.
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