11.12.11

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“Patent Judges Want the Last Word Over Patent Law in Europe”

Posted in Europe, Law, Patents at 9:35 am by Dr. Roy Schestowitz

ಠ_ಠ

Bardehle Pagenberg

Summary: Lawyers hijack people’s laws (for their own financial benefit) and the FFII issues an announcement of sorts

THE PATENTS ‘industry’ is one of patent lawyers and elevated lawyers (aka judges), who are extracting a lot of money from a real industry, essentially raising the prices of everything to justify their own parasitical existence. “Patent judges wants [sic] the last word over patent law in Europe,” writes the president of the FFII, “afraid of “unspecialized” European Court of Justice” (in IRC he told us that “patent judges wants EU monopoly over patent law”).

Here is the Microsoft Word document that shows this. We pulled the text out of this binary enclosure that requires Microsoft code/patents:

Bardehle Pagenberg
Prinzregentenplatz 7 D-81675 München
Tel: +49 89 92 80 50
Fax: +49 89 92 80 5444
pagenberg@bardehle.de
29 October 2011

Unitary Patent and Unified Patent Court

Introduction
The European Patent Lawyers Association (EPLAW), comprising lawyers with many years of experience in European patent litigation, has been following closely the preparatory work for and the legal discussions regarding the creation of a European patent court system. In cooperation with the EPO Academy EPLAW has been organizing since 2005 the Venice Judges Forum, and several of its board members who are also members of the EU Commission’s Group of Experts have participated in shaping the texts of the relevant international documents. EPLAW members represent both large multinational corporations in all fields of technology as well as SMEs with very small patent portfolios.

As a result of discussions on the Draft Agreement on a United Patent Court and the Regulation on a Unitary Patent at the 7th Venice Judges Forum on October 29, 2011 which was also attended by the representatives of the Polish Presidency and the EU Commission EPLAW has concluded as follows.

Regulation on Unitary Patent Arts 6 – 8

EPLAW had requested in its Resolution of 27 September 2011 urgent amendments of the Agreement on a United Patent Court and the Unitary Patent respectively which has been explained and discussed in Venice in detail. Judges and litigators all agreed that what in EPLAW’s Resolution under par. II.f) had been described as the most serious drafting error, namely including Arts. 6 – 8 of the Regulation into the text of the Regulation on the Unitary Patent, must be corrected.

Supported by a legal opinion of Prof. Krasser, one of the most prestigious German scholars of patent law, EPLAW referred to the extremely negative consequences of the insertion of Art. 6 to 8 in the Regulation for the users which Prof. Krasser has explained in detail. The EPLAW Board has confirmed in Venice that its members fully approve also Prof. Krasser’s interpretation of Art. 118 TFEU. The following citations and key conclusions from the Opinion highlight the arguments which the judges and attorneys who are members of the Commission’s Expert Group had unanimously concluded already in their first discussion on this question in April of this year in Brussels.

3. The minimum requirement for the application of the authorisation is, according to Art. 118 (1) TFEU, merely that an intellectual property right is created by Union law. This itself achieves the necessary minimum harmonisation at least if the subject matter and core effect of the right in question is established identically in the law of the (participating) Member States….

..For this reason, the proposed Regulation can be restricted to creating the basis for the grant of unitary patents for the participating Member States….

..It is sufficient for the uniform protection required by Art. 118 (1) TFEU and the “same effect” of Art. 3 (2) of the proposed Regulation that the aforesaid core effect is unitary..

5. To date, it is undisputed that Art. 118 (1) TFEU, in the event that a unitary patent under Union law is created, does not require the preconditions for the grant to be regulated under Union law. On the contrary, the provisions of the EPC will continue to apply, and the EPC is not part of Union law…

..It would be logical to word the Regulation … in such a way that questions of the content and limits on the effect of such patents cannot give rise to a submission to the Court of Justice.

EPLAW is of the opinion that even if there may be legal reasons why one could come to the conclusion that including rules of substantive patent law into the Regulation, such rules are not required. Their rejection by the great majority of member states and practically all users results from the promise by the Commission and the Council that only judges with the highest qualification and experience in patent law should deal with patent litigation between private parties, so that an involvement of the ECJ beyond the EU legal order as it exists today should be avoided, otherwise the entire project could be endangered. Users request an efficient and predictable procedure before highly experienced judges which they would not get in proceedings which would include referrals on substantive law to the ECJ.

The bottom line is, the legal system in Europe does not serve its citizens. It seems to be serving either the patent lawyers or the multinationals whom they make money from (to distort the competition). Klaus-Heiner Lehne is a good example of that.

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A Single Comment

  1. Michael said,

    November 12, 2011 at 7:58 pm

    Gravatar

    When you use phrases such as “elevated lawyers (aka judges)” you are doing nothing but advertising your poor views of the legal system.

    Yeah, you do not like the legal system. Next.

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