Unitary Patent and Unified Patent Court will boost trade and investment

The methodology of the report appears to involve assuming that the UPs will bring "stronger" patent protection that is easier to enforce. Upon the basis of earlier studies, this "improved" patent protection is then assumed to foster faster growth in "patent-intensive" industries. There are some notable exclusions, too. Because they already have "maximum strength" patent protection, BE, DK, FI, FR, DE, IT, IE and NL are excluded (as are EE, HR, LV, LU and SI, for which there is no literature measure of relative strength of patent protection). On the other hand, there are some curious inclusions in the study. For example, in addition to making the unjustifiable assumption that all EU member states will ratify the UPCA, both ES and PL are included in the study. This is despite the fact that ES cannot and PL will not ratify the UPCA. So, in summary, this is a study based upon a huge pile of over-simplified assumptions combined with the exclusion of almost all of the "big" economies of the EU. And after all that, the study predicts big gains for very small economies such as CY, LT and MT, but no gain (or only marginal gains) for the "big" economies of the EU. Also, it seems inevitable that the conclusions of the study would be highly sensitive to changes in factors that have been over-simplified (e.g. the impact upon "harmonisation"), or to inclusion of factors that have been outright ignored (e.g. impact upon the ex-EU trade of EU-based competitors of non-EU patent holders). Indeed, some of the conclusions of the study appear to fly in the face of common sense. Two particular examples stand out. Firstly, one would have thought that, as a HIGHLY patent-intensive industry, the pharma industry ought to be one that would "benefit" from UPs, and that would therefore contribute to the gains that the study predicts. However, I have yet to meet anyone from pharma who would be willing to request unitary effect for a key European patent, thereby risking (even after the end of the opposition period) losing that patent in 14+ EU territories in a single stroke. Secondly, the study concludes PL is one of the countries that would stand to gain the most. However, PL has indicated that it will NOT be ratifying the UPCA... which is presumably on the grounds that it has reached the opposite conclusion to the study. To be clear, I am not saying that it is impossible that the UPCA coming into force will bring economic benefits... just that the present study really does not provide anything in the way of reliable "evidence" on this point.

Bearing in mind that EPO et al. will soon have to submit their comments in the German constitutional complaint proceedings, the timing and purpose of this "study" is all too obvious. Expect more along these lines in the coming weeks.

What else could one expect from the EPO? As the studies relating to SMEs published by the EPO, the result had to be positive. At least it is admitted that the study is empirical, so in other words done with a wet finger, telling where the wind comes from. One aspect which has not be envisaged in the study: what if the patents granted by the EPO are of suboptimal quality? That risk is not to be belittled as the complaints about quality are growing. Claiming 40% more grants with the same, or even higher quality is not credible. Introducing 5 years contracts for examiners will also not help improving quality, as it is from 5 years onwards that the costs of training a new examiner will begin to be recouped. If an examiner leaves for whatever reason after 5 years, the investment will never be recouped. One has seen what a high turnover of examiners has done to the USPTO. By the way, the EPO should publish a long term statistic about the survival rate of granted European Patents in nullity proceedings before national courts. The data is there, so why not publish it? For the rest, one cannot but agree with the comments of Concerned Observer. Including PL in the study, whilst the previous Polish government has decided not to pursue ratification, and this for exactly the opposite reason as the one given in the report, is simply laughable. The present Polish government is certainly not more pro-European integration. One might regret it, but is a fact which should not be blatantly ignored. So what is to be demonstrated here, other than a plain denial of reality? The fear of putting all the eggs in the same basket was already present when the EPO opened its door. But the high quality of the work done at the time, and until recently, showed that this fears were not justified. As far as the UPC is concerned, the way it has been pushed through, as well as the way its rules of procedure have been concocted behind closed doors, is rather increasing the fears than lowering them. With the Brexit problem, which is far from being resolved, not to speak about the complaint before the German Constitutional Court, the situation is even more unclear. Presently the UPC suffers from one important problem: is it in accordance with EU law? The opinions diverge on this point, but it would have been more positive for the fate of the UPC if this question would have been answered upfront. Why has this not been done? Which investor is accepting to play such a risky game? The UPC is not a magical want by which everything in the European patent world becomes hunky dory as the report would like us to believe. Saying this does not mean that harmonisation in IP matters in Europe in general, and in the EU in particular, is not an aim which has to be pursued. The UPC is however not the only means to this effect. EPC has some member states which have been and will remain key players in the IP world, and which cannot join the UPC. In view of opinion C 1/09, it is clear that those countries will never be allowed to join the UPC. Tom Taylor's comment is highly pertinent as well. Techrights: fingers off!!

Once I've been to a party of the Portuguese community in Belgium. I've asked a couple sitting next to me what was their way to Belgium. They told me they are pharmacists/biologists and used to work in Portugal for a branch of the big Pharma company. The branch was located in Portugal because of the absence of patent protection in Portugal for the drag. When the patent expired, the company has relocated the business to Belgium and closed the site in Portugal. Some employees could move to Belgium, like the couple I met. The uniform big bulks of exclusivity hinder a competition, which otherwise would look for its ways everywhere. The further located EU Member States, with their own languages and small population, risk to become a periphery, faster than investments cover them with the abundance.

When it comes to the UPC, the level of pleading from vested interests, parties with "an Agenda" is enough to make one puke. I started in the patent profession before the EPO, in the days prior to the Protocol on Art 69 EPC, when Germany decided scope of protection one way, and England in a very different way. Since then, there has been ever greater harmonisation throughout EPC-land, and a huge gain in legal certainty. Not because of any pan-European court but because of enlightened performance at the EPO (until recently), and comradely behaviour from the patent judges in the leading EU jurisdictions. Judges are only human. They want their clear and logical thinking to be adopted by their brother and sister judges in the other jurisdictions. Bear in mind that these other jurisdictions have very different procedural law. But they come together regularly, to debate and minimise their differences, which are steadily diminishing (see the latest Decision by the UK Supreme Court, to aligh itself with mainland Europe). This rivalry between different procedures and different legal interpretations is what improves the clarity of the law of infringement in the whole of Europe. If you doubt me, observe how rivalry between the various Technical Boards in EPO DG3 has produced a body of caselaw, in the White Book of Established Caselaw, that is unassailable in its logic and so has swept the world. For the most recent example, see the current IPKat interview with the Head of the Patent Office in Australia. The proponents of the UPC should be ashamed of themselves, sacrificing all this legal certainty and harmonisation at the behest of the multi-national corporate interests, the bulk users of the EPO patent grant service, to rid themselves of the attentions of troublesome SME patent owners. And we were doing quite well enough recently, with engineering disputes litigated in Germany and pharma litigation concentrated in London, and no need to litigate everywhere in order to resolve the dispute. As Robin Jacob has said "We can learn from the Americans. Watch what they do, and don't then make the same mistakes". Introducing this UPC is to make the same mistake as the Americans. And note, for the same reason. Germany, the home of the SME engineering manufacturer is, with its Constitutional doubts, is belatedly seeing the light. Better late than never.