CIPA
THERE ARE MANY GOOD REASONS WHY IT WOULD NOT BE IN THE BEST INTERESTS OF EUROPE’S BUSINESSES TO HAVE SO MANY PATENT INSTITUTIONS BASED IN GERMANY.
Fortunately, the Polish presidency eventually acknowledged that there was still work to be done. Te signing ceremony that was scheduled for December 22 was cancelled. Te unitary patent baton has been passed to the Danish presidency, which may well succeed in getting agreement during the first six months of 2012.
Te proposed new treaty will also set up a unitary patent court to consider patent cases across Europe. Germany has proposed that the Central Division of the court should be located in Munich (where the European Patent Office [EPO] is already located). High-value additional work and revenue will inevitably flow to law firms and ancillary businesses that are based in the city chosen for the court’s Central Division.
However, there are many good reasons why it would not be in the best interests of Europe’s businesses to have so many patent institutions based in Germany. If the new court went there, it would increase costs for UK and other non- German companies. Tey could find themselves having to defend their patents in a German court. Additionally, the German system of judging patents (infringement first and invalidity second) in separate trials, means that patent owners may be able to enforce invalid patents, halting legitimate new businesses. Some fear that this would encourage ‘patent trolls’ to set up shop in Europe.
CIPA and others have also championed London as the ideal location for the new court’s Central Division, to the UK government. The UK has a reputation for being a good place to register and defend patents. London’s courts are second to none and, unlike those in most of the rest of Europe, they have specialist patent judges.
Court of Justice of the EU
In May 2011, the advocate general of the CJEU gave a preliminary opinion on the legality of patenting the results of stem cell research that uses human embryos. In October 2011, the court announced its judgment, which followed the advocate general’s advice:
“A process which involves removal of a stem cell from a human embryo at the blastocyst stage, entailing the destruction of that embryo, cannot be patented.”
Research organisations claim that this decision goes against the position that is taken by the EPO and national patent offices in Europe. They also argue that it will reduce the incentive for investment to convert basic scientific research into innovative, useful therapies and could lead to greater secrecy around research in this area.
In November 2011, another opinion from the CJEU’s advocate general was a success for CIPA, which brought the case referred to as IP Translator, hoping that it would end an anomaly in the way trademarks are classified in Europe. The CJEU had to decide between two conflicting approaches to EU Community and national trademark registrations.
Trademark applicants state the ‘specification of goods or services’ over which they want to claim exclusive rights. One approach, known as ‘means- what-it-says’, is followed by Austria, the Benelux countries, Germany, Denmark, Spain, France, Sweden, the UK and Ireland. Tis approach simply reads the words of the ‘specification of goods or services’ according to their dictionary significance.
Te other approach is called ‘class-heading- covers-all’. It is followed by Finland, Hungary, Italy and the central EU trademark registration office, the Office for the Harmonization of the Internal Market (OHIM), and applies where the words of a class heading are used to define a specification of goods or services. Tis approach treats such a specification as a claim for all the goods falling within the class, whether or not they are specifically mentioned in the heading.
The advocate general of the CJEU delivered his opinion at the end of 2011. It is largely in agreement with the ‘means-what-it-says’ approach, which is in line with the views of the UK government and the European Commission. The court is likely to deliver
18 World Intellectual Property Review e-Digest 2012
its full judgment in the summer of 2012. Although the advocate general’s opinion is not binding on the court, there is a strong likelihood that the court will follow it and find for ‘means-what-it-says’.
Looking ahead
Europe will continue to face challenges in 2012. An agreement on a unitary patent and patent court is closer than ever, but major obstacles remain. CIPA’s view is that any new system has to be an improvement on the existing system and the institute will continue to press the UK government and members of the European parliament to make changes that industry and professions are asking for. Without these changes, many industries are unlikely to benefit from the new system.
Tim Roberts is president of the Chartered Institute of Patent Attorneys. He can be contacted at:
tim.twr@
gmail.com
Tim Roberts is a Fellow of CIPA and sits on several of its committees. He has an MA in chemistry from Oxford University and has worked in industry, for ICI and subsequently Zeneca, specialising in IP related to plant protection and biodiversity. He also sits on several UK and European advisory panels. Roberts currently consults for Brookes Batchellor LLP (London) and Khursheed Khan & Associates (Karachi).
www.worldipreview.com
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