Wintersteiger 2: the mechanism for commenting on Court of Justice references

If the Intellectual Property Office can
sort this little problem out, government
will get free advice from well-informed
stakeholders -- IP owners, industry
and trade groups, consumers ...

A spin-off from last week's Katpost on Wintersteiger was sparked off by his comment about the ludicrously short time that is given by the UK's Intellectual Property Office (IPO) for consultation of the public.  Helen Jones (Gill Jennings & Every LLP) wrote to the IPO to express her concern at this repeated inconvenience, bordering on insult, to the UK IP community, receiving this reply:

"Many thanks for your email about the IPO’s consultation process on European Court of Justice (ECJ) cases. We always welcome feedback.

We are sorry to hear that you are unsatisfied with the short timescale for comments for ECJ case C-523/10 Wintersteiger. [the invitation to comment was issued on 29 December; comments were to be received by 4 January. Between these two dates was a long public holiday weekend]

The process for handling ECJ cases in the UK government is complex and requires input from numerous parties. Our website lists two deadlines. The first, the deadline for stakeholder comments is based on the deadline set for the IPO by the department that sends us the case details, which is the Treasury Solicitor’s Department [Is there no means, in this age of instant digital communication, of making sure that the IPO received information about intellectual property cases the same time as the Treasury Solicitor's Department does? That way, the IPO could prepare and send out its invitation to make comments well in time.  It's not as if the information provided in the invitation goes wider than listing the case name and number and the questions at stake]. The second deadline is the deadline by which the UK is required to file observations with the Court [that's 1 March 2011].

Treasury Solicitors require approximately five weeks in which to instruct counsel and prepare any intervention. They give the IPO two weeks, at the most, in which to decide whether to intervene, make the policy case to our Minister and obtain Ministerial approval to intervene [might a public sector IP coordinator, sitting down with the Treasury Solicitors and the IPO, help work out a way of getting the best use of the time?].   The stakeholder consultation that the IPO undertakes is therefore difficult to fit into the tight timescales. It is a service that the IPO provides [It would be a service that the IPO provides, if only the IP community had a proper chance of taking advantage of it; at present it's no more than a function that the IPO performs] but other government departments do not [], and ECJ and government deadlines are not designed to accommodate it [then perhaps we should speak to other EU Member States governments and the ECJ about ways of improving the situation.  It usually takes the best part of TWO YEARS for a referred intellectual property question to get from initial reference to ultimate ruling; within that time span it should be possible to allow for more than one week for concerned parties and stakeholders to consider whether, and how, to make comments]. Nevertheless, we aim to keep these delays to a minimum, and aim for a two-day turnaround between receipt of the documents and a notice being mailed. In this case in particular, the IPO updated the website and informed stakeholders on the very same day of receipt.[That is commendable in itself, but within the context of a failed system it doesn't achieve very much]. 

We believe in doing all we can to best inform UK policy for which your observations are most welcome. We look forward to receiving your response on any future cases. 

Yours truly, International Policy Directorate".

tytoc collie is really pleased to learn what, and how, the IPO has been doing.  It's a pity that, while many people have been complaining for a while about the short time allocated for comments, and this blog and its associated weblogs have mentioned it numerous times before, it is only now that we have had the current system explained to us.  Merpel adds, when the current system is next examined, it would be good if those contemplating making submissions at least knew who else was doing so, do avoid either duplication or one stakeholder group failing to respond because they erroneously assume that another one is doing so.

tytoc collie and Merpel both beg their readers outside the United Kingdom to tell them what, if anything, is done at Patent Office or government level to solicit comments from interested parties? It would be good to know.