Examination of Witnesses (Questions 40
MONDAY 10 DECEMBER 2007
Mr Kevin Mooney
The Committee has yet to consider its observations but I think
the Committee would appreciate your comment on one possible observation
which is that not much progress is going to be made unless we
move to QMV.
Mr Mooney: Given that there is a blocking majority
already for a limited language regime, I frankly do not think
it matters whether unanimity is required or qualified majority
voting. I was chairing a meeting last week and the Commission
official responsible for this project was one of my speakers and
I did ask the question whether she thought that Article 97a, introducing
qualified voting, would assist her and she said it would not.
She would need unanimity to get this through.
Q41 Lord James of Blackheath:
I need to declare an interest before I can ask a question and
that is that I am currently chairman of a rapidly expanding medical
device company, working closely in conjunction with an American
research university and therefore hugely dependent upon the integrity
of the patents that we can achieve for Europe. In this company
at the present moment we are suffering hugely from attacks upon
our patents from one particular Member State, and in every case
we always win. We are rather in the equivalent of playing a football
match where the individual would have had so many yellow cards
by now that he would have been suspended for at least the rest
of this season, yet there is no such process of discipline applying
anywhere throughout the European structure. They get no slap on
the wrist and they do not get any national control put upon them
to behave better in the future. It is costing us a fortune. We
are winning but I would like to think that there is going to be
a better system of patent control applied to Europe as an entity
that we can all trade with greater confidence.
Mr Mooney: I think we would all welcome that.
The advantage of the centralised court would be that you could
obtain an injunction for infringement of your patent which would
automatically apply throughout the Member States of the Europe
Patent Convention, which is most of Europe. The advantage of a
Community patent, when it eventually comes, is that it is a unitary
right which will apply for the whole of the Community and, therefore,
if you get an injunction against your troublesome company again
it will apply for the whole of the territory of the Community.
That is something which I think the vast majority of companies
would welcome; not all, there are some very strange exceptions.
Q42 Lord James of Blackheath:
I can assure you we will be on the doorstep the day they open
Mr Mooney: I must say that not all major industrial
companies necessarily see it the same way.
Q43 Lord James of Blackheath:
It is probably because we are device rather than pharmaceutical
that I take the view that I do and I think there is a big distinction
Mr Mooney: Yes, I do not want to be cynical
but I think the pharmaceutical industry enjoys the current anarchy;
there are a lot of benefits to it.
Lord James of Blackheath: Sadly I have
to agree with that, but thank you for the encouraging direction
we may go into, and God speed the day.
Q44 Lord Whitty:
Most of this has been about protecting the patent of a supplier
and making sure that we move to a more common definition of the
patent and if we are moving to a Single Market that makes sense.
However, ultimately the Single Market is for the benefit of the
consumer and it is not clear to me in which direction customer
protection is going overall. If I take the music sector, clearly
there are current arguments about the degree to which you can
download music without infringing copyright. The same thing applies
in certain areas of patents, not so obviously to the individual
consumer. Is the general feeling that as we move, albeit in a
stuttering way, to a European definition of patents, copyright
and trademarks that that will be more protective or less protective,
even in crude terms like the number of years this lasts? In other
words, is there going to be a Single Market because it is standardised
or is there going to be a Single Market because it is in one sense
Mr Mooney: There is an enormous amount of harmonisation
that already exists. Let me just concentrate on patents again
because that is my field. Under this European Patent Convention
I mentioned, patent law throughout Europe was harmonised. What
was not harmonised are the court systems and the traditions of
those courts. What happens is that you have the same patent effectively
being enforced in some countries but not being enforced in others
because the court receives different evidence. For example in
England you get discovery and disclosure and you get lots of cross-examination;
in other countries you do not. We have the rather absurd situation
where you have the same patent, you have the same substantive
law but you have different outcomes in different courts. That
is, with respect, a nonsense given that we are supposed to have
an operating single internal market and that is why these two
twin exercises of first of all getting a centralised court system
and then a Community patent is so important. If you go back to
the Lisbon summit in 2000 where they rather grandly said that
they wanted Europe to be the biggest knowledge-based economy in
the world, number one and number two priority was to have a Community
patent and a Community patent enforcement system.
Q45 Lord Whitty:
The Lisbon objective in that context is to ensure the maximum
investment and innovation really so there is a real return on
innovation. Innovation is of some benefit for the individual citizen
but there is a balance between protecting and getting return on
the innovation and getting competition less restricted by the
fact that there is a patent. I can only give the example of what
is the likely destination of the protection period because if
it remains at pretty near to whatever it is then clearly it is
helpful for the individual consumer to have commonality but they
would probably prefer that it was only 15 years and some other
company could actually provide an alternative which might be cheaper
in the short term. There are conflicting objectives is really
what I am saying. There are conflicting objectives of making sure
that we are driving through innovation through a return on innovation
but also making sure that we are driving a Single Market through
competition so that the patent system which is frozen at a common
level is not so protective that it does not allow for related
Mr Mooney: I entirely agree with you. I give
a lecture every year to postgraduates at Bristol University and
I start with a balance sheet. On the left are the good things
about the monopoly and on the right the bad things about the monopoly
and then we discuss how best to achieve the good things on the
left and how best to avoid the bad things on the right. One of
the critical things on the right is a limited life and there must
be a limited life to enable the innovator to recover his investment
but not long enough to distort competition. That is absolutely
right. This debate goes on and on and on. Currently it is 20 years
for a patent or if you happen to be in the pharmaceutical industry
you can add bits and pieces to it. With copyright, we have had
the debate whether it should be life plus 50 or life plus 70.
These are debates that society has to continue to have.
Q46 Lord James of Blackheath:
Can I just add a point to Lord Whitty's excellent exposition of
the problem there, and that is that there is a world of difference
between the breach of an existing patent and the process by which
a new patent is applied for which is intended to leapfrog past
the patent which has been broken and carry the technology forward.
It would be a hugely important gain if whatever court process
was established within Europe could define the difference between
those two clearly and have a better system for disciplinary control
on patent breach which is what is missing at the moment.
Mr Mooney: Unfortunately the two mechanisms
you mention are quite different. Enforcement will be through the
courts; the process of granting patents will remain with effectively
the European Patent Office which is quite separate from the court
system. The length of time it takes for patents to grant is a
matter which is the subject of a convention and it is something
which the Community has nothing to do with frankly.
Q47 Lord James of Blackheath:
You will appreciate that the speed with which the process of granting
the new patent can proceed is often curtailing the remedy to the
breach of the patent in the first place and that is where the
Mr Mooney: I could not agree with you more.
I use the word advisedly, it is a scandal how long it takes sometimes
for oppositions to patents in the European Patent Office to be
Q48 Lord James of Blackheath:
I am glad you used the word "scandal" and not I, and
I would only ask whether you can offer any indication as to how
we should redress this scandal.
Mr Mooney: Yes, I can. We had a meeting in Venice
a few weeks ago with all of the major judges in Europe and one
of the people who came to speak to us was Alison Brimelow, a very
formidable, very intelligent English lady who is now President
of the European Patent Office. She was presented with a number
of complaints about the time, and the bureaucracy, that it was
taking for patents to be granted. She has promised to go away
and do something about it.
I think I am right in saying that the new Treaty refers to European
Union intellectual property rights whereas if you look at previous
treaties I think I am right in saying that the reference is to
industrial. Could you indicate why there has been this change
and is there any significance?
Mr Mooney: Industry property rights is merely
the rather old fashioned name for intellectual property rights.
When I was a young lawyer I recollect that one of my partners
in Simmons & Simmons was invited to chair the Industrial Property
Committee for the City of London Solicitors Company. He said,
"That's fine, that is right up my street because I am a conveyancer".
What he did not realise was that he was going into an area that
was probably misnamed.
Chairman: This has been very helpful.
Just in conclusion, although we have not followed the script in
terms of questions we have had, I think, a much more interesting
and productive exchange.
Lord Walpole: We have learned a lot.
Is there anything else that you would like to add for the record
that we have not covered?
Mr Mooney: No. You are absolutely right, the
new legal basis, Article 97a, refers to new Community rights.
I have spoken about the Community patent because frankly that
is the only one that is in prospect and I do not think that the
changes will affect whether or not that comes into existence.
God willing it will, but I do not think that the current proposals
will affect it one way or the other. What other rights the Commission
has up its sleeve for the future I simply do not know and therefore
it is very difficult to say whether these changes will affect
matters one way or the other.
Chairman: Thank you very much indeed.
That brings this particular session to a close.