My Lords, we welcome the introduction of the Intellectual Property Bill and are supportive of its policy intent and objectives, particularly as it provides for the power to establish a unified patent court, giving effect to the European agreement made in February 2013, which we also support.
Clause 16 amends Section 89 of the Patents Act 1977 and expressly provides the Secretary of State with the power to make an order conferring divisional
jurisdiction on, or removing jurisdiction from, a court. With this amendment, we are suggesting that before this power is used, the Secretary of State ought to consult with stakeholders.
At present, under Article 7 of the Agreement on a Unified Patent Court, each contracting member state may request and establish one division of the court of first instance of the unitary patent court within its jurisdiction for every 100 patent cases in each calendar year during three successive years prior to or subsequent to the date of entry into force of the agreement. This is subject to a maximum number of such divisional courts per jurisdiction of four. We note that in the event that the UK jurisdiction as a whole has a sufficient number of patent cases to merit more than one such divisional court within the UK, the Secretary of State will have the power to designate other courts, which need not be in London.
At present, the Court of Session currently has exclusive jurisdiction in Scotland over patent cases, including UK and EU-UK patents. If it were to lose this jurisdiction in respect of the new unitary patent, which is of course designed to eventually supersede the current European patent and possibly national patents, patent litigants in Scotland would be forced to litigate their relevant patent rights elsewhere in the United Kingdom or further afield in the EU. That would add significantly to their costs and to their overall business burdens and administration. We believe that at least two divisional courts might be situated in the UK as a whole and suggest that one might be based in Scotland. There seems to be potential to ensure that future patent litigants who operate in the Scottish jurisdiction are not unduly disadvantaged.
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This amendment seeks to ensure that the Secretary of State consults HM Courts and Tribunals Service, the Scottish Court Service, the Northern Ireland Courts and Tribunals Service and other appropriate consultees, and takes their views and evidence into account before conferring, removing or varying court jurisdiction. In addition, where sufficient numbers of patent cases in the UK allow, the Secretary of State should confer on each legal jurisdiction throughout the United Kingdom a court which has local divisional court status, allowing patent cases, where appropriate, to be heard in that legal jurisdiction. This will effectively preserve the status quo under the existing national and EU patent regimes. Failure to confer local divisional court status may raise access to justice concerns and increase costs and inconvenience to all businesses and litigants, including SMEs, who may be impacted heavily by potential additional costs in bringing or defending actions. I beg to move.