A European Patent Court? A View from European Private Law

by: in Law

The need for a uniform interpretation of patent law need not be satisfied by a European Patent Court.

Last week my colleague William Bull and I spoke at a conference in Oxford organised by Justine Pila and Ansgar Ohly. The conference explored the harmonisation of intellectual property law, looking at models of harmonisation, the creation of European IP courts, the impact of constitutional rights on IP law and the impact of general EU Law on IP law. I am not an expert in IP law, but the interesting thing about the conference was that it used IP law as a case study of the Europeanisation of private law in general. This allowed William and me to speak about similarities and differences among the harmonisation of IP law and of European private law. One striking difference is that the debate in IP law (and particularly patent law) focuses almost entirely on the importance of creating a European Patent Court (a plan that has been around for more than forty years), while in European private law it is on drafting substantive rules. The point that we made in our talk was that the need for a uniform interpretation of patent law need not be satisfied by a European Patent Court. The now proposed European unitary patent system has several drawbacks anyway, including a preliminary reference procedure to the EU Court of Justice (with little expertise on IP law and the chance of long delays). It may then be better to allow holders of a European patent to sue infringers before their court of choice that already built up expertise in dealing with patent cases. This is to some extent already existing practice: the district court in Düsseldorf deals with 700 patent cases per year and these cases come from all over the European Union. So while governments are fighting over whether the new European Patent Court needs to be located in Munich, Paris or London, practice seems to find its own way.