1 Notes from the Conference

Most talks were in German, quite a few in English, one in French. Simultaneous interpretation between DE and EN as well as from FR to EN was available.

1.1 2007-06-25 Morning

1.1.1 11.15 Welcome Address of Raimund Lutz

COMMENT: A short introduction of the programme.

1.1.2 11.30 DE Minister of Jutice Brigitte Zypries: European patent policy under review - taking stock at the end of the German EU presidency

• Current German system of litigation works quite well for most cases, but we we shouldn’t be satisfied with the status quo. Efficient IP protection is extremely important, and with EPLA we have a proposal that enjoys full support of industry and professionals, but unfortunately some Council delegations oppose this proposal and we were forced to slow down.
• German presidency has tried hard to move forward along the Commission’s route, questionnaire has given us a basis for understanding each delegation’s interests. We will continue to work hard to form a viable compromise.
• We won’t accept a compromise just for its own sake. The system must be better than what we have.
• There’s some hope of movement in France after the elections. I’ll meet my french colleagues very soon and will do what I can to promote London Agreement and EPLA
• We won’t go on forever. If at a certain point we find that we still aren’t reaching an agreement, we’ll give up on a European patent court and find better ways of using our energy. In that case we will seek improvements from informal judicial cooperation, and the regular meetings of European judges will then gain importance.
• The patent community (literally “Patent-Community”) can’t decide everything for itself. As the patent system grows in importance, there are more and more critics whose interests can’t be ignored forever. Programmers continue to be vocal about software patents (note: Zypries used the terms “computer-implemented inventions” and “software” / “software patents” alternatingly, treating them as synonyms, without appearing to favor one over the other). There are also serious concerns about gene patents and about negative impacts of patents on research.

COMMENT: On the whole this speech was one of the highlights of the conference, as Ms. Zypries offered some authoritative insights and appeared to be speaking about a subject with which she is quite familiar.

1.1.3 12.00-40 Aldo Belloni of Linde AG: Strengths and Weaknesses of Europe as an industrial location for innovative industry

• Many interesting slides showing great gas handling technology of Linde, a truly global and multinational company, chief competitor of Air Liquide
• Strengths of Europe include
  • Diversity: whatever your problem, there’s always at least one country that excels in providing solutions. In Linde, European national teams each have their independence and their strengths, and we succede by combining these.
  • Governmental infrastructure investments: although European governments are no match to the famous Japanese MITI, they have often provided the decisive impulse for development of new technologies by financing basic research in the early phases. Many basic patents are in the hands of European companies who participated in these programs.
• Weaknesses of Europe include
  • xenophobia: it’s sometimes difficult to get highly-skilled people from abroad to come to work in Europe
  • lack of venture capital: nothing like the scene of Silicon Valley has formed in Europe
• Patents have always been very important for Linde
  • Contrary to what the the open-source movement is claiming, innovative industries need patents. Temporary monopoly protection is very important. If there was no temporary monopoly, companies would either do nothing or keep everything secret, and that would kill off all innovation.
  • slide of some important patents of Linde’s founding father, which everybody is freely using today
• German Federal Patent Court (BPatG), although small, functions very well, it would be great if this model of success could be extended to Europe.

COMMENT: while the speaker’s final remarks about the function of patents appeared naive, his presentation broadened the perspective to include some bits of general thinking about economic policy, which otherwise was completely missing at this conference.

1.1.4 Lutz

• thanks Belloni for praise of my court, but: our court is not small, we have 130 judges. Well, compared to Linde that is of course small, but compared to other courts it’s big.

1.1.5 14:00 UK judge Robin Jacob

• 4 solutions to problem of fragmentation of jurisdiction
  1. keep status quo: not satisfactory
  2. cross-border injunctions: leads to horrible forum shopping, dutch example, fortunately stopped by ECJ (with Gat v. Luk decision)
  3. EU system: favored by professors and politicians, constitutionalist bias, will produce slow procedures like the trademark procedures of the ECJ
  4. EPLA: the only practical system, as industry and practitioners know
• legal objections to EPLA are invalid, I wrote a paper with professor Arnull, published on EIPR. Sir Sir Francis Jacobs privately agreed.
• professors such as Annette Kur of Max-Planck Institute sometimes come up with unpractical ideas on judicial cooperation
• minister Zypries really knows what she is talking about, unlike a politician, enviable.

The speech must have been based on the script published by the IPKat blog a few days later. See also the comments on the blog. James Heald reports about a more skeptical view on EPLA taken by Sir Francis Jacobs at a meeting in London a few days later.

1.1.6 14:20 FR judge Philippe Semeriva

argues in favor of EU system, says that EPLA is not an option because of conflicts with EU law.

1.1.7 14:40 DE (BGH) judge Prof. Meier-Beck

• current system is working fairly well
• EPLA proposal most desirable
• refutes some anti-EPLA arguments
  • dismisses “software patents through the back door” claim without comment, relying on shared values of the audience.

1.1.8 15:00 JP Supreme IP Court judge professor MIMURA Ryôichi

• have studied in Cologne, happy to be able to speak German, rather than English, here [applause]
• To improve quality of patent validation procedings and strengthen patent system, build “IP-based nation” (Koizumi policy), Japan recently installed the Supreme IP Court
• explains structure of Japanese judicial system, noteworthy features include
  • invalidation procedings are handled by the Patent Office, Supreme IP Court comes in only as an appeal court in 3rd instance
  • infringement cases are heard only in Tokyo and Osaka
  • technical experts have no voting rights, there are many technical experts sitting on the panels, but the voting judges are all legal experts
• Japanese patentees are looking forward to the European Patent Court, it will make patent enforcement much more convenient for us. Also, it will be a milestone on the way to global harmonisation of patent law.

1.1.9 15:20 US CAFC judge Randall Rader

• I am coming to you to sell back to you an idea that came from Europe: that of unified supreme patent courts
• CAFC was inspired by experiences such as that of Germany with its centralised invalidation court
• CAFC has a broader scope than just patents, it’s about copyright law, commercial law, competition law etc, but more than 70% of the litigation of CAFC is occurring in the field of patents
• Before the CAFC was created, it was very inconvenient for companies to enforce patents in the US
• Since creation of CAFC, enforcement has become easy and the value of patents has greatly increased in the US
• A strong patent system is a key element of competitiveness of the US Economy, and our innovative companies play a major influence on the world economy
• The experience of the CAFC is a very positive one, and it’s being imitated everywhere in the world, including Japan, China and Europe. I’m now selling it back to you. Our success experience should be a source of inspiration for the EPLA court
• By installing supreme patent courts to strengthen their patent systems, the leading economies of the world can together achieve global harmonisation of patent law and thereby set the rules of the game of the world economy.

COMMENT: Rader was an excellent speaker, charismatic, slow, easy for the interpreters to translate. It was however remarkable that Rader did not ever seem to have heard of the wave of criticism that the CAFC has provoked. He also didn’t mention the recent Supreme Court decision against the CAFC’s low non-obviousness standards.

1.1.10 15:40 CN Supreme People’s Court judge LI Jian

• There is an ongoing discussion in Chinese journals about the pros and cons of a supreme patent court
• Some scholars have been raising concerns that a supreme patent court will tend to create a “club culture”, i.e. a system driven by self-interest.
• It is by no means certain that we will decide to install a Supreme patent court for the time being.

1.1.11 16:30 Annika Ryberg of Electrolux, Sweden

• even if there is no parallel litigation, the simple fact that we have to consult the expertise of several experts for different jurisdictions is burdensome, and the difference in strategies as well as idiosyncracies of all these experts complicates matters
• We don’t need any other language than English
• Industry is unanimously desperately calling for EPLA, we badly need it, why aren’t the politicians delivering what we need!

1.1.12 16:45 Manfred Schlemmer, entrepreneur, Germany

• CEO of welding technlogy SME http://www.schlemmer.de/ with 60 employees
• I have advised Gerhard Schröder and Angela Merkel on patent matters, but when we talk on the phone, our conversation isn’t limited to patent politics
• inventor, patents are very important for the company, I personally talk to my patent lawyers and follow the court procedings
• I have recently fought one major patent through 3 instances in only 6 years and won in every instance. This shows that the German patent court system is working very well (laugh). Well, it is slow, but a patent system probably can’t be much faster. It’s about as good as it can get in Germany.
• A good court system must be composed of technical judges. These must be experts in their field, and they must be strongly convinced that patents are good. If a panel consists of lawyer judges who are advised by external experts, those experts will tend to think that they themselves are the greates geniusses and could easily have come up with the same idea, and they’ll declare everything obvious by hindsight.
• It is important for me that the patents and the litigation are written in my native language. Maybe in 30 years everybody will know English as well as his native language, but today this is not the case. I would rather keep the current system than go for one that forces me to use a foreign language, and I think this is true of many SMEs.
• There are now some anti-patent activists out there who claim that they represent SMEs. E.g. there’s an organisation called Patentfrei, whose name is already anti-patent, and which says that huge numbers of SMEs are on its side. Frankly, I don’t know any such SMEs. OK, maybe they exist in the IT field, among those programmers who copy each other’s code all the time, and whose field at best accounts for 10% of all granted patents. If you are innovative, then you’ll want patents. If you don’t want patents then you lack confidence in your innovation. Those who are against the patent system shouldn’t have any say on patent reform. Those 2000 submissions to the Commission that complain about software patents are just rubbish.
• strong applause from the audience

Later, during the pause, Mr. Schlemmer took some group photos together with me, after he had learned that I’m from FFII. He also spoke about his participation in various high-level political activities, including delegations of entrepreneurs accompanying the chancellor on his visits to China and elsewhere.

1.1.13 17:00 Eugen Popp, speaking for Chamber of German Patent Attorneys

• Current court system works as well as it can get
• Germany would lose many of its current advantages under EPLA, but of course, since we are all good Europeans, we are in favor of EPLA, which indeed is a promising concept
• My private view is that most of the aims of EPLA could be achieved just as well by judicial cooperation. If we amend the Brussels II Ordinance, especially Article 22,2-3 in certain ways, we could, even without any central court, avoid parallel litigation and form a common system of caselaw.

1.1.14 17:15 Mario Franzosi, Italian attorney and book author

• In order to be good Europeans, we need to be in favor of a European Patent Court even if it does not constitute an improvement over current realities
• In the initial phase, any European Patent Court is likely to make litigation more expensive and to have various disadvantages, but in the long run these will be improved and our system will be much better than the current one
• Some figures about litigation in Italy. There seem to be many cases, mostly preliminary injunctions, which are however not quite comparable to German preliminary injunctions. Patent cases constitute about 5% of the IP cases

1.1.15 Panel discussion

1.1.15.1 Hubert Weiss from German Ministry of Justice

moderator, asked questions to panelists and accepted some questions from the audience.

1.1.15.2 Peter Messerli from EPO (responsible Technical Boards of Appeal)

• judicial expertise is scarce in Europe and therefore EPO judges should be allowed to serve in the European Patent Judiciary alongside with national judges.
• three-language regime of EPO is feasible, anything beyond that not

1.1.15.3 Kevin Mooney from European Patent Lawyers Association EPLaw

As to be expected from an EPLaw representative, argued strongly in favor of the EPLA.

Quoted Thierry Sueur’s joke from the Berlin Conference of March, where he said “If you ask your wife where we want to spend your next vacation and she said in the south at the beach, and you then go on and buy a ticket to the north pole, what would your wife say?”, reproaching that the Commission first asked industry’s view and then proceded to do something other than EPLA, although industry wants EPLA.

1.1.15.4 David Rosenberg from UK pharma company GlaxoSmithKline

London Agreement is very helpful, saves companies a lot of money, EPLA not so.

Something like EPLA is in principle desirable, but there are many more problems than people think and the current system works quite well.

1.1.15.5 Thierry Sueur, vice president of Air Liquide

The moderator didn’t mention his profession nor his political role, but very often gave the floor to him.

• When asked whether he knew of any cases of parallel litigation (i.e. simultaneous procedings in several countries over the same patent), he answered that this was the wrong question: even if no cases exist, we always have to take into consideration that judges in various countries could rule differently, and that makes it very difficult and costly to take business decisions. We have to obtain expertise from specialists for all kinds of jurisdictions. That’s a big waste. “Why are you doing this to us?”
• The difference between Europe and US+JP is that these latter have clear national strategies. They believe in patents. They believe that by installing a supreme specialised patent court, they will strengthen their patent systems and thereby enhance their competitiveness. And, over the last 20 years, that’s what has happened. And in Europe lacks this conviction and that’s the deeper reason why we aren’t seeing much progress on EPLA.
• France will soon sign London Agreement. Sarkozy will keep his promise. At a small meeting last week his prime minister confirmed that.

1.1.15.6 Mauro Masi, professor of university of Milano and advisor of the Italian Council delegation

• EPLA as proposed is not viable, incompatible with EU law, but difficulties can be overcome
• EU Patent Court should have same language regime as EU Trademark Court (i.e. EN+FR+DE+ES+IT)

The latter statement led to expressions of scorn from the audience.

1.1.15.7 Bernd Tödte, judge at Federal Patent Court

1.1.15.8 Thomas Reimann, GRUR.de

1.1.15.9 Audience: attorney Meibom of Bird & Bird

• Pretense (by Sueur, Ryberg et al) that companies have to consult special lawyers for every jurisdictions and that we have a burdensome system of parallel litigation are out of touch with reality. It is nowadays commonplace for companies to build a cross-jurisdiction litigation strategy, and usually a settlement is reached for all Europe after some litigation in one jurisdiction. Parallel litigation is almost inexistant, Epilady example is 10 years old and not even based on an EP bundle patent.
• I’m in no way against EPLA, I just want this discussion to be conducted on a realistic basis.

1.1.15.10 Audience: N.N. (white-haired scholar)

• More strategic thinking, like Mr. Sueur proposes, would indeed be very good, but you have to be careful.
• Convenience of uniform litigation leads to an increase in the value of patents and thereby to an increase in the number of applications as well as amount of litigation
• A uniform system is especially advantageous to the owners of weak patents. It makes weak patents easier to enforce. This can result in an erosion of patent quality. This is exactly what has happened in the US.
• A strategy can not just be based on convictions. Or maybe behind those convictions there is something else that you are not clearly enunciating here.

The moderator was pleased about this distinction between the claimed “strategy” and the hidden agenda, and immediately used it to attack Masi’s pro-EU line as a pretext in front of a hidden agenda.

1.1.15.11 Audience: Macedonian Ambassador

• Before working as an ambassador I worked in the patent system, wife is patent attorney in Munich
• Speaking of “strategy”: our strategy can only be to strengthen the EU.
• I see too few Eastern-Europeans at this symposium

1.1.15.12 Audience: Romanian ECJ judge

• speaking German very well
• I live in Luxemburg, work in the ECJ, formerly in RO patent court
• We have been educating a lot of people in patent law in RO, you shouldn’t be concerned that ECJ or EU-PatCt will be any less competent than an EPLA Court

1.1.15.13 Audience: N.N., member of Slovak Council delegation

• biggest problem is language problem
• you can’t abolish languages
• it’s difficult to make a centralised system cheap and efficient under these circumstances
• [some proposals for language regime simplification]

1.1.15.14 Bavarian minister of justice Beate Merk at evening reception in the palace

Ms Merk (not Merkel) explained once more (like at EPForum) how important patents are, how closely Munich and Bavaria are connected to the patent system, and how she has been working successfully to get the Upper Chamber of the German parliament to pass a pro+EPLA resolution, which she read out loud in its full length, with a consecutive interpreter translating every paragraph.

The audience was standing there with their champagne glasses and expressing its impatience by whispered private conversations.

1.1.16 2007-06-26 Day 2

1.1.16.1 Margot Fröhlinger of European Commission: The proposal of the European Commission

• Parallel litigation is unacceptable, we must do something
  • names some examples of parallel litigation, including Epilady and two newer ones
    • document security system case, software patent, was enforceable in Germany (Düsseldorf) but declared invalid by UK (London), France is now facing the difficult choice between two doctrines
    • Swiss mechanical patent case (possibly also not a bundle patent)
• The Commission’s deliberately kept it’s EU-EPLA proposal sketchy
• There are many difficulties, and before we get too deeply bogged down in concrete proposals, we need to find out what the member states’ interests are. DE Presidency has done very good work on this. Questionnaire results will come out at the beginning of PT Presidency.
• Both camps need to move
• French Election result and new EU constitutional treaty make things easier
• PT Presidency will push negotations forward
• The final result should retain those features that make EPLA attractive to industry
• A signable agreement can be expected next year

1.1.16.2 Roland Grossenbacher, president of EPOrg Administrative Council

• EPOrg created 30 years ago
  • >30 member states, larger than EU, although/because nobody is forced to join
  • 200,000 patent appplications, 60,000 granted patents in 2006
• success makes hungry – l’appétit vien d’en mangeant
• parallel litigation a big problem, as witnessed by the Epilady case
• Paris conference of 1999 decided to do something, created two workgroups
  1. London Protocol, will be in force once FR has, as expected, ratified
  2. EPLA
• EPLA court fees will be high, but could be lowered by subsidies
  • from EU for central instance
  • from member states for regional instances
• EPLA vs EU-EPLA, only 3 major differences
  1. EU-EPLA requires forced membership, EPLA allows gradual growth, countries don’t block but join when time is ripe for them
  2. EU-EPLA may lead to burdensome language regime
  3. EPLA could be seen as blocking the path to Community Patent, but this problem can be solved. EPO can become Community Patent Office

1.1.17 Panel Discussion

1.1.17.1 patent attorney Jochen Pagenberg

• moderator
• member of the Litigation System workgroup installed by the Paris Conference in 1999
• speaks English, encourages panel to speak English; only Wichard keeps speaking German

1.1.17.2 Benoît Batistelli of French Patent Office (INPI.fr)

• only EU-EPLA is viable, Brussels II leavs no choice
• no matter whether the EU has exclusive competence (as Europarl Legal Service thinks) or only shared competence, a non-EU framework is out of question, and Commission needs support of qualified majority before it can negotiate
• we are clearly for Commission’s options B or C
• There is very little difference between EPLA and EU-EPLA, substance is same
• DE presidency has achieved great progress toward EU-EPLA, compromise is within reach
• Majority requirements for EPLA negotiations are the same as for EU-EPLA, there’s no reason to believe the latter is less realistic than the former.
• Contrary to what Grossenbacher et al say, nobody is forced to join EU-EPLA, EU members are free to opt out of certain projects
• In difficult projects like the Euro, the Schengen system, agreements were reached, so why not in IP?
• We now have a new EU Constitutional Treaty, that makes things even easier.

1.1.17.3 Erik Noteboom of European Commission

• Community Patent is first choice but we need compromises and intermediary solutions
• EU-EPLA Court should be in a sunny location with sea and mountains and … (laughter)
• no option but to move on, failing to bring about EU-EPLA would be a disgrace
• We left the EU-EPLA proposal sketchy (without a draft treaty), because it is not yet the right time to bring the lawyers in. If you bring them in to early, they may spoil the party. If you bring them in too late, also. You need to find the right moment.

1.1.17.4 Klaus-Dieter Langfinger of Business Europe, BASF patent attorney

• existing system works but has weaknesses
• there is very little parallel litigation, but, as Mr. Sueur said yesterday, the simple fact of having to account for the possibility of divergence is an unjustifiable burden, especially for SMEs
• clear message from EU Consultation: industry wants EPLA
• EU politicians, please get your act together soon, or better give up

1.1.17.5 Johannes Wichard of German Ministry of Justice

• What do we want to achieve?
  • continue the dynamics
  • give the Commission the mandate to negotiate EU accession to EPLA
  • McCreevy said last year that this was his goal and we believed him
  • Now we have a formation of two camps. It would be exaggerated to speak of “hostile camps”
• Results of DE presidency’s questionnaire to EU member states will come out soon
• We have asked the legal service of the Council to provide an expert opinion on compatiblity of EPLA with EU. It will come out at the beginning of PT Presidency.
• We could start with EPLA and then later turn it into a Community system through accession of the EU

1.1.17.6 António Campinos of Portuguese patent office (INPI.pt)

• We need to work hard to increase number of portuguese patent applications,
• Although we are lagging behind, we share same vision of strengthening patent system to enhance Europe’s competitivity
• We want a decentral system with a central court of appeal, 1st instance should be close to us
• We want specialised judges and technical experts1
• We’ll conduct 4-5 meetings and try to do what we can
• We won’t seek compromise at any cost, system must be more attractive than status quo

1.1.17.7 Robert van Peursem, judge at district court of The Hague, NL

• strongly pro-EPLA
• Also in Council, our country’s position is also staunchly pro EPLA and anti EU-EPLA
• Commission has failed to ask ECJ about EPLA, maybe those legal problems don’t really exist
• If we can’t have EPLA as is, we might consider to remove everything that conflicts with Acquis Communautaire, e.g. with IPRED and Brussels Convention, but that is hardly a practical option
• The experience of the Benelux patent court is a success and a possible model
• We want to keep the Swiss in, it’s difficult to achieve that with EU-EPLA

1.1.17.8 Audience: Gert Kolle

• doubts the legal basis of claims that EU treaties are an obstacle to EPLA
• EU treaties should be interpreted differently, otherwise Europe paralyses itself

1.1.17.9 Audience: PA Bardehle

• don’t vilify forum shopping: forum shopping is a positive force in bringing about specialisation of patent courts; without forum shopping the Düsseldorf court would never have become the center of competence which it is today

1.1.17.10 Final words of Pagenberg

• Commission has already said many times “this is the last attempt”
• If we can’t move on with what we have, we have a problem.
• The major issue is whether the countries really want to move foward
• From Schiller’s Wilhelm Tell: “We can only win if we are united”
• I expect this effort to last 2 more years.

1.1.17.11 Final words of Lutz

• switching back to german
• Thanks to the speakers
• We must continuously set this subject onto the agenda
• I note that some people are losing interest in doing so
• More and more people are considering maintenance of the status quo to be an option
• The time window is limited, let’s use it to the advantage of the innovative industry
• Wish PT presidency the best
• We will summarise the procedings and publish them on our website as well as in a conference volume
• Thanks to the Ms Renate Hocke and the PR department of the Federal Patent Court for organising, thanks to the interpreters

2 Further Reading

• Official Program
• Call for a Lean and Democratic Patent System in Europe
• last similar governmental rally in Berlin – that was before the French election, and the plans of industry lobby group Business Europe, with which the government jointly conducted the rally, were failing because of resistance of the Chirac administration. Which is probably why the presidency decided to conduct another rally near the end of its term.
• Patent propaganda flyers inviting to this event were sent by the president of the German Patent Court, Raimund Lutz to a large number of members of the European Parliament
• Munich Symposium preparation
• Monika Ermert in Heise 2007-06-26: Europäisches Patentsystem: Status Quo statt Reform?