The Intellectual Property Bill, which will be discussed in the House of Lords this week, paves the way for a new patent court system to be set up in the UK, but the Law Society of Scotland said that, as it stands, the draft law could see Edinburgh’s Court of Session lose its power over patent cases.
If this happened, the society said inventors and businesses could be forced to travel to London or elsewhere in Europe to defend their rights, landing them with increased costs and adding to their administrative burden.
Although the bill provides for up to four possible local divisions of the unified patent court, it does not place any obligation on the Secretary of State to grant jurisdiction to any particular court.
The Court of Session, Scotland’s supreme civil court, dates back to the 16th century, and Gill Grassie, a member of the Law Society’s intellectual property committee, said it currently has jurisdiction in Scotland over cases involving existing patents.
“If it were not to have this for the new unitary patent, then litigants in Scotland would no longer have an effective local option available to protect their patent rights – they would instead have to litigate or defend their position elsewhere in the UK or Europe,” she said.
“This could significantly increase costs for those litigants. Designating the Court of Session as one of the UK local divisions of the unitary patent court would ensure that patent litigants who operate in Scotland are not unduly disadvantaged.”
The Law Society said it supports the creation of the patent court, but it has submitted an amendment to peers, asking them to make sure the Court of Session retains its jurisdiction over patent cases north of the Border.
In his letter to the Lords, Brian Simpson, law reform officer at the Law Society of Scotland, said that, if there were enough patent cases to merit more than one divisional court within the UK, “it is constitutionally appropriate that the Court of Session be designated as one of those”.
Russell Thom, patents director at Glasgow-based Murgitroyd, said: “Providing a local division of the unitary patent court in Scotland will ensure that Scottish businesses continue to have a local option available to litigate patent rights. This should ensure Scottish businesses are not disadvantaged from their present position.”
The shake-up in patent law is being driven by the establishment of the European Union’s unified patent court, which is due to be introduced next year. The court’s seat will be in Paris, while London and Munich will cover life sciences and mechanical engineering respectively.
Robert Buchan, a partner in law firm Brodies who specialises in intellectual property, said: “Scotland punches above its weight in areas such as oil and gas and life sciences, so it’s important that litigants in Scotland have the option of an effective local court to protect their patent rights.
“Otherwise they could find themselves having to pursue or defend the new unified patent elsewhere in the UK or further afield in Europe.”