In Part I of our review of the meeting we looked at the opening set of remarks provided by Neil Feinson of the IPO, Vicki Salmon’s discussion of Article 48 of the Unified Patent Court Agreement (copy here) and Chris Mercer’s review of Rule 286 of the Rules of Procedure of the Unified Patent Court (current on the 15th draft, a copy of which can be accessed here).
In this post we focus on the thoughts made by The Hon Mr Justice Birss in summing up the meeting. It is noted that Mr Justice Birss stressed that any views he made were not an endorsement of the official UK position and that he reserved the right to change his mind!
- As an opening comment Mr Justice Birss noted that the issue of representation in the Unified Patent Court is not up to us, or to him, but that it will be decided at a pan European level.
- Mr Justice Birss note that the issue of representation is very important to the UK patent profession and that it is important that UK patent attorneys are in the UPC. He then turned to look at the various issues raised during the open meeting.
- As far as arguing that we should be able to represent in the UPC on the basis of being EPAs only then it was Mr Justice Birss’ view that the Agreement is clear in both Article 48(1) and (2) that it is not enough just to be an EPA, something else is required.
- In his view the UK argument should focus on the fact that we are also RPAs (i.e. we should be arguing that we qualify under Article 48(2)UPC on the basis that the RPA status provides the “appropriate qualification” required by the UPC). He personally thought that we would not win the argument under Article 48(1)UPC that we are “lawyers” (though he said he would be happy to put that argument forward).
- He anticipated a potential difficulty in arguing that UK patent attorneys are qualified to appear in front of the IPEC since traditionally we as a profession have not made much use of that ability. This, he felt, would be an easy comeback from Europe.
- He suggested that the way for the UK to win our arguments is to find suitable allies in Europe on this issue, e.g. Sweden.
- Mr Justice Birss then finished by stating that the issue is an urgent one. Clearly we don’t want questions hanging over the profession when the unified patent court finally opens.
The meeting then concluded with Mr Justice Birss suggesting that he would write to Mr Oliver Varhelyi, the head of the Human resources and training working group.
IPcopy will continue to follow this issue with interest and will report back on any further developments.
Mark Richardson 29 January 2014