Last December, the negotiations relating to the future creation of a Patent Court for the European Union (“EU”) collapsed as a consequence of the failure on the part of Germany, the United Kingdom and France to reach an agreement on the location of the so-called “central” division. As is usually the case in this type of negotiations, in order to avoid the lack of agreement on this point jeopardising the negotiation process, over the years the negotiators had decided to put this hot topic on the back burner and defer a decision on this very difficult point for the time being. But now that the time has come to bite the bullet, the topic has become a stumbling block in the final stages of the negotiations.
If you don’t want to get the wrong answer, do not ask the wrong question. The negotiators should consider whether there must be a permanent location for the so-called “central” division or, even better, whether there is a need for a “central” division in the first place. The project has an unnecessarily centralistic flavour that contrasts very sharply with the decentralized nature of the enforcement mechanism available for applying competition law, patent law’s next-door neighbour in many respects, let alone the enforcement mechanisms applied in the field of EU trademarks. To overcome this stalemate in the negotiations, there is room for more imaginative enforcement structures that may get rid of the wrong question in the first place.
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