Patent uncertainty: Goldilocks and Google

tytoc collie has received this comment from an employee of a well-known patent-granting office.  For the sake of his job security, peace of mind and future promotion prospects he prefers to remain anonymous.  He writes:

"Reading the plea in your recent post for someone to explain how a single EU patent would lead to greater legal certainty, may I proffer an explanation?

The key is Article 69 EPC and its attendant protocol, regarding interpretation of the scope of protection provided by a claim. As is well known, this boils down to stating that the scope of protection is not too broad, and not too literal, but somewhere in between [Indeed, says the Kat -- and while he's not convinced that there is such a thing as "too literal", we all know what this means]. As neither the EPC, the protocol nor EPO Board of Appeal case law has, as far as I am aware, characterised a skilled Goldilocks who can get it just right, this has led to well-known differences when the subject-matter of a European patent is subjected to the rules of interpretation in the courts of the countries of the resultant national patents, albeit according to the same initial criteria. Cases such as Catnic/Formstein and Epilady (discussed here) spring to mind, representing Britain v Germany. Legal certainty is, as is well known, compromised by varying interpretations across the EU's single market.

The EU patent will solve this simply because there will be one patent interpreted, ultimately, in one place, although this has little or nothing to do with language per se. It does, however, have everything to do with establishing a full EU patent regime, with a single legal structure and preliminary reference procedure to address problems such as this. Legal certainty is obviously enhanced by having one interpretation and ultimate decision which is applicable throughout the single market. None of the criteria are being changed, but at least there will be a facility for imposing uniform interpretation. One should not of course forget the other 11 non-EU EPO states, which it is planned will be subject to the "E" part of the EEUPC, although this aspect appears to be receiving little attention in the light of the present EU initiative!"

tytoc collie thanks his correspondent for the time and effort taken in seeking to explain 'certainty', but he remains unconvinced that this certainty is of any substantial benefit to industry and business, if it exists at all.  The interpretation of a patent is an after-the-event occurrence.  Decisions concerning the investment in the development, testing, manufacturing and marketing of products or operating processes -- whether covered by a patent or whether attempted by a competing third party -- will generally have been taken long in advance of a final decision as to whether, on even the best application of the principles of the protocol to Article 69, an infringement exists.  What will happen is that investors, managers, manufacturers and other commercial interests will find that a specific patent is either infringed everywhere in the EU or nowhere in the EU, while at present they find that the same patent is infringed in all, some or no countries in the EU.  Are we not just replacing one uncertainty with another?

Merpel adds, if you look at the total number of patents granted in Europe but then start totting up the total of cases in which national courts come to conflicting decisions on the application of the Protocol to Article 69, are they not a tiny proportion of the whole?  We talk of "cases such as Catnic/Formstein and Epilady", but how many of us can confidently, off the top of our heads, name another five examples?