Review of Centre for Commercial Law Studies at Queen Mary University of London’s conference on the European Patent System versus European Patent System

by Julius Berg Kaasin

This article is written by Maria Paola Mulè, María Victoria Rivas Llanos and Julius Berg Kaasin, all L.LM. 2013/2014 candidates at Queen Mary University of London, Student Research Fellows at Queen Mary Intellectual Property Research Institute (QMIPRI), and Assistant Editors of the Queen Mary Journal of Intellectual Property (QMJIP)

From 18th to 20th of March the Centre for Commercial Law Studies of Queen Mary University of London hosted a special three-day conference titled “European Union Patent system v European patent system: Past, present and future of patent protection and patent litigation in Europe”. The conference was aimed at law students, but also other delegates with a more scientific background participated.

The conference was chaired by Manuel Desantes Real (Professor of Law, University of Alicante; Of Counsel, ELZABURU; Former Vice-President, EPO). Further speakers were Aurelio López-Tarruella (Associate Professor of law, University of Alicante; Of Counsel, Ferrandis) and Dr Dieter Stauder (Former Director, International section, CEIPI; Former member, EPO). The extensive academic and practical experience of the speakers in international patent law brought interesting perspectives to the debate.

The first day started with an introduction to the international agreements for the creation of a unitary patent (UPA) and the Unified Patent Court (UPC) by Professor Desantes Real. He outlined the long lasting process that led to the agreements and analysed the reasons why EU Member States opted for an international agreement to reach a European goal. Almost all EU Member States have already signed the Convention except for Poland and Spain. However, before entering into force, the Convention still needs to be ratified by 13 Member States; including France, UK and Germany. So far, only Austria, France and Malta have ratified it.

The focal point stressed by Professor Desantes Real was how the UPC would constitute a unique example of a judicial organ called to decide on private issues. It will be the first ever court in history having exclusive competence to deal with questions of private law and sovereign rights, namely nullity and infringement of patents. Furthermore, it will have common procedural rules for all participating Member States, which represents a great step towards European harmonisation.

The second issue addressed by Professor Desantes Real was the difference between European patents with “unitary effect” and the European patents without this effect. Professor Desantes Real showed how the system works in practice and the implications the new system might have, both from the society and the EPO perspectives. It was also stressed how important it is for a company to bring an infringement action before the most efficient patent court, in terms of speed of the process and costs reduction.

Professor Desantes Real rightly stated that patents are the corner stone of the internal market. With this in mind, answering the question on whether or not we need the European Unitary patent appears to be straightforward. However, it is still unclear what the legal basis for the proposed Convention will be. Having said that, the solution proposed by Art. 118 TFEU seems to provide a plausible one.

On the second day of the conference, Professor López-Tarruella explained how patent litigation works in Europe through a set of case studies. The main provisions involved were the Brussel I Regulation (on jurisdictional matters) and Rome II Regulation (on applicable law). Professor López-Tarruella showed students the practical application of the aforementioned legislation in cases of cross-border litigation.

Professor López-Tarruella underlined the necessity of bringing proceedings before the most appropriate court in order to avoid wrong advice, that in the worst case scenario could lead to the insolvency of SMEs. Some ECJ pronouncements on “forum shopping” complicated the scenario, due to its conflicting nature with the principles of the internal market, in relation to the free movement of goods, services, people and capital.

By the end of the second day, the students had a good overall picture of the patent litigation system in Europe, as well as on further expected developments after the implementation of the Unified Patent Court.

The conference concluded third day with Dr Stauder’s speech on the interpretation and implementation of EPC Law into Member States’ national systems. Dr Stauder explained how European patents have the same effect in the EPC Member States as a national patent would have. In the same line of thoughts, regarding an action for patent revocation brought before a national court, the court will apply the EPC grounds for patentability as well as the precedent set by the EPC Member States in their national case law.

Concerning the interpretation of European patent claims, national courts should aim for a uniform application of the EPC Law by finding a balance between the strict literal meaning of the claim and the fair protection of the patentee. In this process of harmonisation, several national courts have recognised the value of foreign decisions and the doctrine set by foreign academic lawyers as a relevant persuasive tool (e.g. Lord Diplock in Fothergill v Monarch Airlines and Lord Justice Jacob in Actavis v Eli Lilly).

All in all, the speakers provided attendees with a dynamic and in-depth analysis of the current international patent system and the further developments about to take place. All the speakers were particularly successful in getting the public involved in the discussion, helping them to get a better picture of the current, and forthcoming, European patent system.

Maria Paola Mulè, María Victoria Rivas Llanos and Julius Berg Kaasin are all L.LM. 2013/2014 candidates at Queen Mary University of London, Student Research Fellows at Queen Mary Intellectual Property Research Institute (QMIPRI), and Assistant Editors of the Queen Mary Journal of Intellectual Property (QMJIP)