There cannot be many barristers who would commence an evening of drinks and revelry with talks on topics as abstruse as the Biotechnology Directive or appeals from OHIM to the General Court but then those of us who earn our living by construing claims and drafting non-exclusive end-user licences are a rare breed. In the words of Robert Burns:
“Wha’s like us
And they’re a’ deid”
Nevertheless, that is what happened yesterday in Middle Temple at the IP Bar Association annual garden party.
The talks were very good. Michael Edenborough QC spoke on appeals from the Boards of Appeal of OHIM to the General Court. Michael Tappin QC discussed the decision of the Court of Justice of the European Union in C-428/08 Monsanto Technology LLC v Cefetra BV and others  EUECJ C-428/08. Richard Miller QC gave updates on the Patents County Court and the proposed European and EU Patents Court.
Edenborough gave us the following useful tips:
- Always read and re-read the rules of procedure, practice directions and practice notes of the General Court very carefully every time you have a case because they change very frequently.
- Don’t miss deadlines because the Court has no inherent jurisdiction to extend time;
- If you have an oral hearing try to grab the morning slot if you want lunch and make sure you arrive the day before because Luxembourg airport is often fog bound.
- Don’t spend longer than 15 or 20 minutes on opening (depending on whether you are opening or responding) and earn yourself brownie points with the judges by foregoing your closing submissions.
In the Q & A that followed I asked a question about pleadings. I was told that they have to be as full as possible with argument as well as material facts – but no evidence.
According to Tappin, the significance of Monsanto is that it is the first decision on art 9 ofDirective 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions and the significance of the Directive is that it is the only EU legislation on substantive patent law. Art 9 provides:
“The protection conferred by a patent on a product containing or consisting of genetic information shall extend to all material, save as provided in Article 5(1), in which the product in incorporated and in which the genetic information is contained and performs its function.”
The case revolved around whether the patented product – namely enzymes used to protect living soya plants from weed killer – found in processed soya meal could be said to “perform its function” since the soya plant was no longer living. The Court ruled that it did not thereby limiting seriously the utility of the patent.
With a twinkle in his eye, Martin Howe QC suggested an appeal to the European Court of Human Rights on the grounds that the Directive took away Monsanto’s property. “A collision between Luxembourg and Strasbourg is just what we need”, he added.
Richard Miller QC informed us that the Judicial Appointments Commission had finished interviewing candidates for the Patents County Court but, unusually, nobody knew who the candidates were. Not even Mr. Justice Arnold. “Have you asked your clerk?” boomed a voice behind me which sounded very like Mark Platts-Mills. “No! Have you asked yours?” replied Miller. Whoever he or she may be, the new judge is expected to take up his or her appointment in October. Also coming in October will be the new rules proposed last year by the Patents County Court Users Committee including scales costs approved by Jackson.
As for the European patents court Miller could say nothing except, in answer to another question from me, that the European Patent Litigation Agreement was dead in the water. Perhaps someone should tell that to the EPO who still list it as a “patenting issue” on their website.
We then had drinks in Middle Temple Gardens and very nice it was too. It was pleasantly warm. The champagne was more than tolerable. And the canapés included a cone of fish and chips. But best of all was the chance to chat to my London colleagues some of whom I had not seen for some years. They included Professor Alison Firth, Jonathan Turner, Jacqueline Reid, Roger Wyand QC, Christopher Morcom QC and several others. Also there and jovial were Lord Justice Jacob, Mr. Justice Kitchin and Master Bragge. Altogether, it was a very pleasant way to spend a Monday afternoon.