"One patent, one language, one court!"… this was the slogan I read today from a proponent of a single European patent court (Martin Schoeller, writing in Science Business's report "Innovation: The Demand Side").
It sounds good. It's definitely a nice sound bite. But it sounds familiar. Ah, yes, "Ein Volk, ein Reich, ein Führer", the rallying cry of another unifying movement from a few generations ago.
The dream of a single European patent court has a powerful grip on the politicians of certain countries, especially Germany, Belgium, and perhaps, France. But apart from being a "clean" solution to our messy European situation, what would a central patent court bring us?
I've argued in a recent paper that a single court would raise costs, by up to 5-10 times, for anyone defending a patent from revocation proceedings, or defending a business from patent litigation.
Already in Europe it's very clear that the cost of patent litigation marches hand-in-hand with the size of the court. Big courts cost more, much more.
Today I'm looking at another aspect of patent litigation, namely specialisation. Those who want a single European patent court want a specialised court that handles only patents.
In Europe, this is not the most popular model. Most countries handle patent cases in normal commercial courts, with normal judges, calling in patent experts as needed. Does this cost more, or less, I wondered.
Figure 1: Does a specialised patent court system save money? The answer is "no", it costs on average four times more.
Once again, the EU Commission provides us with helpful data. According to my research, the following EU countries have specialised patent courts: Austria, the UK, Germany, and Sweden. All other countries handle patents in normal courts, together with copyright and trademark cases. I don't have data for the Netherlands and Belgium.
If we take the average costs per case, and the number of cases per year, we get the chart in figure one. What this chart shows is quite stunning. A specialised patent court system costs on average four times more.
We can make two possible conclusions. Either, the higher costs in these countries is a coincidence, and has other origins. Maybe patent cases are just more complex in these countries because they allow software patents? Or alternarively, specialised patent courts create monopolies that drive up the costs, because like almost any businessmen, lawyers will charge as much as they can.
"One court, one language, one patent!" starts to look very dodgy. Until we can prove that high costs are not a consequence of centralisation and specialisation, Europe's politicians need to tread very, very carefully when considering a single European patent court system. Creating new monopolies is really the wrong thing to do in 2007. Complex questions like "is Europe's diversity good or bad" often have simple but insane solutions, as we learned in the last century.