Draft Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016

Kevin Brennan Excerpts

Tuesday 1st March 2016 General Committees

[Kevin Brennan (Cardiff West) (Lab)]

I know you will understand, Sir Roger, when I say dydd gwyl Dewi Sant hapus—happy St David’s day to all members of the Committee, and particularly the three other Opposition members who represent Welsh constituencies.

As ever, we are punching above our weight on European matters in this Committee. [Interruption.] Well, the Six Nations is yet to come, as is Euro 2016. The proposals in the draft order have largely been viewed positively, and one would after all think it sensible to have one patent covering 25 European Union countries rather than 25 separate patents in 25 different countries. The difficulties in pursuing patents in potentially 25 different languages—it may not be that many—with the time, energy and cost involved, would be much simplified by having the unitary patent. As the Minister said, this measure has been in the making since February 2013, when the UK signed the unified patent court agreement, so we have had several years to get to grips with the detail and to try to sort out any administrative problems.

Some questions have been raised about the mechanics of introducing the unitary patent. It will be interesting to hear whether the Minister can help us on any of those questions this afternoon while we have the opportunity to put them to him. He mentioned that the unified patent court is expected to start in 2017. Does he have any indication in which country the court is likely to be set up and who will adjudicate? Will it be a principal judge or a bench of judges, and what will be the system for appointing and getting rid of judges? Any information he can give the Committee on that will, I am sure, be extremely welcome. What sort of expertise and experience in this complex area of law will be expected of those adjudicating in the patent court? Will there be a way of monitoring the performance of the judges and of the court itself, or any system of performance indicators to judge the success or otherwise of the new court? How much will the administration of the court cost, and how will it be paid for? What will the UK contribution to the cost of the court be?

I know that the Government’s impact assessment says that the net cost to businesses will be zero—I presume because it is anticipated that there will be a net saving overall from having the unified patent court system—but is there any indication of what the cost of applying to the court to register patents will be and how that compares to the current cost in the UK? It would be useful to have some indication.

There have been a number of concerns. The Library briefing for our proceedings today included some concerns expressed by the Max Planck Institute for Intellectual Property and Competition Law in Germany about the proposed unitary patent and court. Does the Minister have any information on that, and do the Government have any views on the concerns that have been expressed? It would be useful to the Committee to hear that. Lord Justice Kitchin was also critical of the proposals in a speech in October 2012, highlighting the difficulty for companies having to fight court cases in different locations. Do his comments have any merit?

Finally—it is a rather obvious question—what would be the effect on all this of a decision to leave the European Union in the forthcoming referendum? In practical terms, would it mean that we would join the system on a temporary basis and then withdraw, or would there be any possibility of maintaining the benefits to business of some kind of unified patent system even if we were no longer a member of the European Union? I would be very grateful if the Minister could give us an idea of the implications of a no vote and a decision to withdraw. How long would it take for there to be an effect on Britain’s participation in the new unified European patent court?

Subject to a satisfactory response to my questions by the Minister, I do not intend to divide the Committee today.

--- Later in debate ---

[Mr Vaizey]

I hear from the Opposition Benches that the deal has already been done, but I will leave it up to hon. Members to decide on the validity of that remark.

[Kevin Brennan]

There was reference in the Library briefing to a blog from Bristows, the starting point of which is that it will not be possible for a non-EU member state to take part in the proposed unified patent court regime. I presume that, if that is the case, we would not be able to apply to be part of it, and British business and UK plc would lose the benefit of being able to register a single patent.

[Mr Vaizey]

I am grateful to the hon. Gentleman for his clarification on that point. I think that that was sort of what I was saying: clearly, were we to leave the European Union, we would no longer be members of the unified patent court. It would then be a matter for the UK Government to ask the European Union whether we could be a member, if we thought that was a good thing. I suspect the European Union would have something to say about that. For people whose lives are dominated by thoughts of having a European patent, it would be a bad thing if we were not a member of the European Union. I hope that that is clear.

Question put and agreed to.