17th EIPIN Congress: Intellectual Property & the Judiciary

by Maria Tsouvali

In 1999 five of the most prominent IP universities in Europe[1], initiated the European Intellectual Property Institutes Network (EIPIN).The main goal was to enhance the cooperation among intellectual property institutions, as well as to facilitate contacts between academics, judges and most importantly students. Every year EIPIN offer students the opportunity to convene and discuss with experts current Intellectual Property issues, through annual Congresses (one in January and one in April),which are hosted by the university partners on a rotating basis.

The most important element of that collaboration is that students are the heart of the EIPIN experience. The main reason is that they actively contribute to discussions by preparing questions as teams and address them to the panels that they are assigned to. Furthermore, these teams (one student of each member-university) are also tasked to write a research report on a related topic. The teams compete with each other as the best report will be published in the EIPIN website and it will also be included in the book that will gather conference presentations of the Congress.[2]

This year the 17th EIPIN was held in Strasbourg-France by the University of Strasbourg (CEIPI). But this time was different. CEIPI hosted jointly the EIPIN with the Spangenberg Center for Law, Technology & the Arts (Case Western Reserve University School of Law, Cleveland, USA). The broader purpose was to involve US scholars and judges more closely to discussions and ensure a fruitful exchange of experience and legal knowledge in IP related issues. Europe and U.S joint force’ trying to underline the fundamental structure and key features of the Judiciary in both legal regimes, as the subject of the EIPIN was “Intellectual Property and the Judiciary”. The result was more than we expected.

Our university was represented by a team of ten students: Marie Bernier-Richard, Edoardo Di Maggio, Vidhi Kotak, Martina Lazzarotto, Hajime Kumami, Ariana Lizano, Julia Diana Moreira Dias, Armin Schwitulla, Joo Hee Sir and Maria Tsouvali.

The first day of the Congress focused on the European Courts. Professor Susy Frankel[3] on her keynote lecture, focused on IP Instruments and Tribunals at national regional and international Level. She suggested that VCLT[4] can be used as an interpretation tool for Tribunals as it can secure coherence of IP Law. Even though national and regional courts are not bound in the same way as international courts to follow VCLT, they could benefit from using it.

Then, the first panel dealt with Intellectual Property in front of the European Court of Human Rights. IP has become one of the priorities of EU policy making. A recent EPO/OHIM[5] study showed that 39% of the total economic activity and 26% of all employment in EU is contributed by IP industries. This is the reason that the legal framework within the EU is highly developed. But is the ECHR familiar with IP matters? Professor Geiger insisted that it’s still under construction level, though is less reluctant. In most of the cases two are the conflicting rights: the right to Property (Art. 1 of the Protocol 1 of ECHR) and Freedom of Expression (Art. 10 of  the ECHR). The most significant decision upon that issue was the Pirate Bay case (Neij and Sunde Kolmisoppi v Sweden). As it was explained at the press release[6]:

“The Court reiterated that Article 10 guaranteed the right for everyone to receive and disseminate information on the Internet. Although the aim pursued by Mr Neij and Mr Sunde  Kolmisoppi [fellow Pirate Bay co-founder] was profit-making, their involvement in a website facilitating the exchange of copyright-protected material was covered by the right under Article 10 to “receive and impart information”. As a result, their conviction had interfered with their right to freedom of expression.

However, since the shared material in respect of which Mr Neij and Mr Sunde Kolmisoppi had been convicted was protected under the Copyright Act, the Court held that the interference of the Swedish authorities had been prescribed by law. It also considered that the conviction of Mr Neij and Mr Sunde Kolmisoppi had pursued the legitimate aim of protecting copyright. Finally, the Court had to balance two competing interests which were both protected by the Convention – i.e. the right of Mr Neij and Mr Sunde Kolmisoppi to facilitate the exchange of information on the Internet and that of the copyright-holders to be protected against copyright infringement.”

After balancing the two rights, the Court concluded that the interference with the right to freedom of expression had been necessary in a democratic society and their application had therefore to be rejected as ill-founded.

On the other hand the influence of the ECHR on EU law is also depicted in ECJ decisions mainly dealing with Copyright issues. Almost every second Copyright case is based on Human Rights (Eva-Maria Painer v Standard & Promusicae v Telefónica de España SAU[7]).Talking about ECHR Jurisprudence, Mr Griffths analyzed some of the most significant IP cases in front of ECHR, emphasizing to the notion of public interest. Public interest is very extensive notion, and can differ from country to country due to political, historical and social factors. As it was stated in James v. UK [8] national authorities are placed in better principle than the International judge to appreciate what can be “in the public interest”.

The discussions also focused on the European Court of Justice and its role regarding IP. Professor Alan Strowel[9] stated that ECJ has established general principles of EU law and lately has dealt with many autonomous IP concepts, such as the Parody exception[10]. Due to Prof. Strowler, ECJ should fill in the gaps by giving the meaning of the provisions and adjust the limits of IPR’s in order to preserve competition and harmonization through Europe. ECJ can be a policy maker but also a troublemaker, as it can stimulate the legislative intervention (Padawan SL v Sociedad General de Autores y Editores de España[11]). This status should change as IP law is a complex and fast growing field (especially because of the technological changes).In 2014, 47 out of 610 cases were IP related. That makes IP the second largest category of law coming in front of the court. That leads us to a legal challenge. Should we keep general courts, or create specialized chambers in order to achieve quicker decisions as well as an effective reduction of litigation?

The first step towards that path was made through the Unitary Patent Package and the introduction of the very well-known in the IP world, Unified Patent Court. But what is the UPC? When UPC comes into existence it will hear cases regarding infringement and revocation proceedings of EU Patents, valid in the territories of the participating states. A single court ruling will be directly applicable throughout these territories. It will enter into force on the first day of the fourth month after meeting three predefined conditions. The UPC comprises a Court of First Instance, a Court of Appeal in Luxembourg, an Arbitration and Mediation Center and a common Registry[12].The UPC aims to a more efficient and consistent system than the current one. It will be consisted of legally qualified judges and technically qualified ones and the panels will have multinational composition.

Professor J.Schovsbo[13] and Mr. Seuba[14] expressed both the advantages and disadvantages of such court. It will definitely create a uniform body of case law but there will be risks. The framework of the court is only explained in two articles so there are definitely gaps that should be filled in. Biased towards certain policy aims, may lead to doctrinal isolation and create democratic deficit. The panel insisted that UPC should seek to include non-technical values and varying opinions and also have the ability to appoint experts. Overall it should see itself as a part of the EU tradition based on diversity and give the parties who are concerned by the outcome, the ability to intervene to the dispute. The speakers then concluded that technical judges should translate all the technical matters to their colleagues, ensuring that the panel understands all the technical issues. The coexistence can be difficult and may promote a ‘tunnel vision’ or a ‘myopic view’ of the law. Thus, that can be avoided if UPC follows HR norms and shape the activity of technical judges.

The second day of the Congress focused on the European Quasi-judicial bodies and the United States Courts. First Mr Wim van der Ejik Vice President of European Patent Office and Head of the EPO Boards of Appeal outlined the basic functions of EPO. The decisions of EPO are final[15] and that is what makes them unique. Also he explained the need of EPO working together with the UPC. National courts still exist so it will be of great importance both of them act to avoid diverges.

Next panel discussion aimed to underline the basic functions of the Appeal Board of the Community Plant Variety Office, an Institution that not many of us were familiar with[16]. The board is responsible for deciding on appeals made against decisions taken by the CPVO and the decisions of the Board can be appealed at the Court of Justice in Luxembourg. CVPO is self-funded and its members are technical and legal experts. The Board accepts limited number of appeals and the hearings are oral in most cases.

Last but not least one of the most important EU quasi-judicial bodies of EU was examined, the board of appeal of OHIM[17]. The Boards of Appeal are responsible for deciding on appeals against first instance decisions taken by OHIM. They deal with Community trademarks and registered Community designs. The decisions of the Boards are liable to actions before the General Court, whose judgments are subject to an appeal in front of the ECJ on points of law. The Boards of Appeal are independent and, in deciding a case, are not bound by any instructions[18]. Stefan Martin, member of the Fifth Board of Appeal of OHIM, concluded that even though it is a success story it still needs procedural improvements in order to increase its speed.

As the panels were changing EIPIN experience became greater. That happened when US scholars and judges joined the discussions. Judge O Malley –appointed judge to the United States Court of Appeals for the Federal Circuit by President Obama in 2010- gave a speech about the optimizing degree of centralization in the court system. She explained that there are certain benefits, such as development of expertise and uniformity of case law as well as Information gathering (Theory of free market). So there are many reasons to support the existence of UPC as well. The discussions were very fruitful as there was made a major comparison on the Federal US Court and the UPC, in terms of centralization.

Finally the third day of Congress discussions was shorter and concentrated on Alternative Dispute Resolution Panels, such as the Dispute Resolution Body of WTO. The World Trade Organization provides its members an effective mechanism solving disputes; most of the times only by helping parties negotiate with each other. Mr A. Jara [19] being Deputy Director General of WTO for several years explained that most of the disputes are settled during consultations and that makes the mechanism a success. Professor Gervais[20] explained – after questions raised from students- that the promotion and use of compensation from WTO as a remedy for non-compliance would be desirable for dispute-settlement, particularly for developing countries if they find themselves in situations where timely implementation is not going to occur.

The next EIPIN Congress will be held in Alicante Spain from 14th -16th of April by the Magister Lvcentinvs (University of Alicante). You are all welcome to live the EIPIN experience and share your passion for IP with us. Till then, Keep Calm and enjoy IP.


Maria Tsouvali, Assistant Editor


[1] EIPIN members are Queen Mary Intellectual Property Research Institute (University of London); Magister Lvcentinvs (University of Alicante), the Munich Intellectual Property Law Center (MIPLC), the Intellectual Property Law and Knowledge Management (Maastricht University) and CEIPI (University of Strasbourg).

[2] http://www.eipin.org/ & http://www.eipin.org/congress.html.

[3] Susy Frankel, Professor at the School of Law of Victoria University of Wellington (New Zealand).

[4] Vienna Convention Law Treaties.

[5] http://ec.europa.eu/internal_market/intellectual-property/docs/joint-report-epo-ohim-final-version_en.pdf

[6] https://www.boek9.nl/files/2013B9/20130313_EHRM_persbericht_TPB.pdf

[7]C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and others [2011] ECHR.

C- 275/06 Productores de Música de España (Promusicae) v Telefónica

de España SAU,[2008],ECJ.

Protection of intellectual property rights – data

[8] C- 8793/79 James and Others v The United Kingdom [1986] ECHR.

[9] A.Strowel: Professor at Saint-Luis University-Brussels and the Universite catolique de Louvain (Belgium)

[10] C 201/2013 Deckmyn v. Vandersteen [2013] ECJ.

[11] C 467/08 Padawan SL v Sociedad General de Autores y Editores de España [2008] ECJ.

[12] https://en.wikipedia.org/wiki/Unified_Patent_Court

[13] Jens Schovsbo, Professor of Law at the Center for Information and Innovation Law at the University of Copenhagen(Denmark).

[14] Xavier Seuba, Senior Lecturer and Researcher at CEIPI (France).

[15] There are two very rare exceptions.

[16] http://www.cpvo.europa.eu/main/en/home/community-plant-variety-rights/board-of-appeal

[17] https://oami.europa.eu/ohimportal/en/

[18] https://oami.europa.eu/ohimportal/en/boards-of-appeal

[19] A. Jara, Cousel at King and Spalding Law firm (Switzerland).

[20] D. Gervais, Professor of Law and Director of Intellectual Property Program of the School of Law at Vanderbilt University (United States).