By Mark Richardson
—

Last week the pan-European
Intellectual Property Summit (IP Summit) was held in Brussels and the first
morning of the summit saw a number of discussions regarding the unitary patent
and unified patent court.  A common theme that seemed to crop up from anyone
representing the official EU position was that the proposed unitary patent
protection (UPP) package isn't perfect but it'll do!  Hmm.

The opening keynote
introduction was from Kerstin Jorna from the European Commission (Director,
Intellectual Property – Internal Market & Services DG) who likened the UPP
package to a cake that doesn't look like the picture in the recipe book when you
remove it from the oven.  According to Ms Jorna, in such circumstances we should
ask ourselves whether the cake is fit to be served to our family!  Apparently
the UPP cake is fit to be eaten.  Please insert your own joke here about too
many cooks in the kitchen . . . .

One other point to come out
of the keynote session was that the European Commission intends to do
everything in its power to grant the first unitary patent in Spring 2014.  Selection of the unitary patent would be made at the validation stage which means
that the first unitary patent is probably already in the system somewhere.

The main session on the
unitary patent and court threw up two main issues:  forum shopping in the
unified patent court and the cost of maintenance fees for the unitary patent.

The maintenance fee issue
was raised by the representative from Proctor & Gamble Europe.  P&G
currently have a validation programme of between four and six contracting
states.  They generally welcome the unitary patent proposals as it provides the option
of enforcing their IP over a wider geographic area.  However, they raised the
concern that the maintenance fee levels are currently unknown and these could
have a big impact on whether the system is seen as financially viable.  They
made the point that once a unitary patent is chosen there is no going back if
the maintenance fee burden becomes too high.  Currently of course they have the
option of dropping some of the validated states if they desire to prune country
coverage.

A Dutch attorney later
suggested that the proposed maintenance fee amounts being discussed would add
approximately 50% to P&G's post-grant costs.  No basis was given for these
figures.

Forum shopping was also
raised as a concern by a number of people in the audience with one audience
member suggesting that there might be a danger of some local divisions
promoting a pro-patentee stance to get more cases coming their way.  If such
local divisions were also associated with referring validity back to the
Central Division, then this would make them potentially very attractive to
patent rights holders looking to get a geographically significant injunction.

It was at this point that a
representative from (I believe) the EPO suggested in the space of two minutes
that (i) forum shopping from the point of view of efficiency and costs was
healthy; (ii) forum shopping (in the manner suggested by the concerned audience
members) would not take place, and; (iii) even if forum shopping developed, the
Appeal Court would overturn matters so that the system would be self
correcting!

This point of view was
quite worrying.  Even if the Appeal Court did eventually overturn infringement
decisions from the local division, it doesn't change the fact that until the
patent is either shown to be invalid or the decision is overturned, a valid
injunction is in place.  The other issue here is one of cost.  If the alleged
infringer is forced to appeal the decision then this will add to their costs.

A point was made later in
the session that under the system being developed the Appeal Court would be
able to intervene and suspend the effect of an injunction if they felt it was
wrong or the local division was issuing "crazy" decisions.  However,
whether the Appeal Court would want to get involved that often is unknown.

A question was asked during
the session on "Rules of Procedure for the Unified Patent Court" as
to when we might expect to see the draft rules (apparently we are up to the
12th draft).  The answer, eventually, came that there would be a public
consultation at some point next year (February onwards).

Mr. Richardson is a Director
at Keltie in London, UK.

This article was reprinted
with permission from the IPCopy blog.