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OPENING OF THE SYMPOSIUM AND WELCOMING ADDRESS

Susan DENHAM - Chief Justice of Ireland

Minister Bruton,

Colleagues,

Ladies and Gentlemen,

I am delighted to join with you for this, the opening of the 16th Symposium of European Patent Judges.

Our meeting place, Dublin Castle, reverberates with echoes of Irish history and the life of this city.

Dublin has for a long time been an attractive place for other Europeans to visit, and in a sense you follow in their footsteps.

When our Scandinavian neighbours, the Vikings, developed this area in the 9th century, their settlement on the banks of the River Liffey was known as "Dyflin", a name which comes from the old Gaelic "Duiblinn" or "Black Pool", hence the anglicised version of our city's name. Coincidentally, the very site of this black pool was situated just below this Castle in the river.

In 1204 A.D., King John of England ordered the building of a castle for the defence of the city, the administration of justice, and the safe custody of treasure.1 From olden times to the present day, the Castle has witnessed momentous occasions in the life of Dublin city and Ireland.

Since the enactment of the Constitution of Ireland by the Irish people in 1937, every Presidential inauguration has taken place in Saint Patrick's Hall. Last year, the Hall witnessed the State banquet in honour of Queen Elizabeth II, during the first visit by the British monarch to an independent Ireland. Ireland's first Presidency of the Council of the European Union (then the EEC) in 1975 was based here, as it will be again on 1 January 2013.

Thus, our gathering today is in a truly historic place, which marks the very foundations of Dublin, and also symbolises Ireland's links to the rest of Europe.

As a Dubliner, I welcome each and every one of you to our ancient city.

Ireland is honoured to host the 16th Symposium of European Patent Judges. This year marks the 30th anniversary of the Symposium which was first held in Munich.

The biennial symposium provides an opportunity for judges who specialise in patent law and patent litigation to meet and to exchange views. Such initiatives establish channels of communication amongst judges, which is important, as it fosters a better understanding of law across Europe and helps to facilitate a more uniform interpretation of European patent law, in the 38 contracting States of the European Patent Convention.2 It is especially important as one considers that European patents are subject to European and national law, the latter of which applies in particular when it comes to enforcement.

Therefore, meetings such as this are crucial in fostering judicial communication and cooperation across Europe. It is so much easier to do this when one can match a face with the name of a judicial colleague. Judicial meetings and discussions help to disseminate comparative case law, a point which was addressed recently by the The Rt. Hon. Sir Robin Jacob, in his paper delivered at this year's Fordham Intellectual Property Conference.3 I am delighted that Sir Robin is here with us for this Symposium.

Patents in Ireland

From Brehon Law to Common Law

Intellectual property protection has a long history which can be traced back to classical times.4 The foundations of the modern law grew out of the monopolies granted by the Crown in England and France four hundred years ago. The first international convention relevant to intellectual property protection was the Paris Convention for the Protection of Industrial Property (1883). This has been built upon by developments such as the European Patent Convention (1973), as amended, and now forms the building blocks of our intellectual property laws in Europe.5

Ireland was the first adventure of the common law, i.e. it was the first place to which the common law travelled, in 1171.6 After that, of course, the common law went with the British Empire to America, Australia, etc.

In 1606, King James I, by royal proclamation, formally abolished the Brehon laws and revoked all existing monopolies, declaring that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies of 1623 in which Parliament restricted the crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years.

The practice of granting monopolies for manufacture, and the issuing of "letters patent", which were prerogatives of the Crown, also applied to Ireland. In the reign of Queen Anne (1702-1714) the rules were changed so that a written description of the article was given; it was required that:

"the patentee must by an instrument in writing describe and ascertain the nature of the invention and the manner in which it is to be performed."7

Prior to the introduction of the common law to Ireland, the Brehon laws were the basis for the indigenous Irish legal system, which existed two thousand years ago.8 The Brehon laws appear to have protected certain intellectual property rights, notably that of copyright.

There is an old story which suggests that in the 6th century A.D., a dispute between two Irish saints led to the first copyright judgment. A monk named Columba Ó Néill, also known as St. Columcille and one of the three patron saints of Ireland, used to borrow books and manuscripts from other monasteries.9 These would have been much like the beautiful Book of Kells which is on public display at Trinity College or the recently discovered Faddan More Psalter housed in the National Museum of Ireland on Kildare Street - both well worth a visit!10 They were written on calf skin (vellum) and would have taken hundreds of hours to write and to illustrate. They are priceless works of art.

Columba would copy the borrowed books, transcribing them by hand. Another monk, St. Finian objected to this practice and accused Columba of plagiarising his copy of the Four Gospels. Diarmaid, the High King of Ireland, was asked to decide the case. King Diarmaid extended an agricultural principle of Brehon law to the dispute before him by finding in simple language that:

"To every cow its calf, and to every book its copy."11

Thus, the early laws of Ireland recognised copyright but not the concept of a protective right for inventions.12 In a historical context, it is likely that patent law really came into its own with the advent of modern industry, and so became a vital ingredient in furthering innovation, whilst protecting intellectual property rights.13

An example of the early grant of a monopoly right in Ireland was that given to William Wood on 12 July 1722, relating to the manufacture of copper coins for Ireland. This patent was later to be rescinded but not before Mr Wood received substantial compensation.14

Independent Ireland

On achieving independence, the Government of the Irish Free State legislated for patent law and enacted the Industrial and Commercial Property (Protection) Act 1927 which established the Irish Patents Office.

The first patent registered under the 1927 Act in an independent Ireland was titled as "Starting cages for dogs and the like". An extract from the First Annual Report of the Patents Office, records that:

"A subject which seems greatly to interest the Irish inventor is dog racing. All the applications received during the year appertaining to this popular modern sport came from citizens of Saorstát Éireann (Irish Free State)."

While many Irish people continue to be enthralled by the sport of greyhound racing, the types of patents being registered in Ireland are increasingly diverse, reflecting the technological advances since the opening of the Patents Office in the 1920s.15

New legislation

The law changed in 1964 when a new Patent Act was introduced which aimed to modernise Irish law and to align it with that of the main industrial countries. The Act introduced the concept of "universal novelty" which, as you know, meant that an invention was unknown anywhere in the world, rather than "not within the State", which had previously applied.

In 1992, our main Patent Act was enacted. This was designed to facilitate Ireland's ratification of the European Patent Convention (1973) and the Patent Cooperation Treaty (1970). New streamlined procedures for the examination of patent applications were introduced. The Act also provided for the granting of shortterm patents which have a life span of 10 years.

In order to be eligible for the grant of a valid twenty year patent in Ireland, the invention must be:

• susceptible of industrial application,
• new, and
• involve an inventive step.16

An invention is considered as involving an inventive step if it is not obvious to a person skilled in that area of technology, having regard to the state of the art.

Industrial applicability refers to the invention's capability of being made or used in some kind of industry, including agriculture.

The 1992 Act has been supplemented by the Intellectual Property (Miscellaneous Provisions) Act 1998, the Patent Act (Amendment) Act 2006 and the Patent Act (Amendment) Act 2012, as well as various Patent Rules in the form of statutory instruments.

Under the legislation, the High Court hears cases of patent litigation.17 This court is a court of first instance and a superior court of record. It is based at the Four Courts here in Dublin. High Court judges accustomed to hearing chancery and commercial law disputes also hear patent disputes. Infringement proceedings, relating to shortterm patents, are heard in the Circuit Court, which is a court of local and limited jurisdiction, and is established on a regional basis in the major towns and cities.18

The need for patents

If ever there was a time for further innovation and development it is now, in our time. For the world economy to grow and to raise the living standards of all people, the necessary conditions for research and development are a vital pre-requisite. This reality underscores the familiar aphorism that "necessity is the mother of invention". The President of the European Patent Office, Mr Battistelli has often said that:

"a patent system is not a goal in itself, it is an economic tool to promote innovation." 19

I fully agree with those sentiments. Patent law is a vital tool for economic growth and development. The provision of conditions where innovation flourishes requires the simplification of legal procedures in relation to patents at national and regional level. This is an issue which I have no doubt you will discuss at this Symposium.

Some of Ireland's famous inventors

Inventors from past times can inspire the current and future generations of innovators.

Ireland has provided many famous inventors to the world.

Sir Francis Beaufort (1774-1857) from County Meath invented the wind force scale known as the Beaufort Scale. Chemist Robert Boyle (1627-1691) from County Waterford is well known for Boyle's Law. Kathleen Lonsdale (1903-1971) developed x-ray crystallography and in 1949 was appointed Professor of Chemistry at University College London, the first female professor at that university.20

Another famous example is that of John Philip Holland (1841-1914) from County Clare. He is credited with launching the world's first successful submarine in 1881. He was commissioned by the Unites States Navy to build their first submarine. Many of his inventions were protected by patent law and were filed with the US Patent Office.

Also, Dr Robert (Bob) Collis (1900-1975). Not only was this Dublin doctor one of the great humanitarians to emerge from Ireland in the aftermath of World War II, but in his chosen profession he pioneered the technique for feeding premature infants via a nasal tube as opposed to spoon feeding. He also invented a simple but affordable incubator for premature infants.21

European Patent Office

I pay tribute to the work of the European Patent Office which has been to the fore in overcoming the national fragmentation of the patent system under the European Patent Convention, and thus promoting innovation, growth and competitiveness in Europe.22 The provision of a centralised procedure for receiving and examining patent applications up to the point the patent is granted has been advantageous for many patentees. In 2011, I understand that the EPO received more than 250 000 patent applications.

The excellent reputation of the EPO is maintained by its highly qualified staff of 7 000 people, including 4 000 specialist engineers and scientists who work in three languages.

The EPO uses powerful IT tools and a "state of the art" translation system to assist its work. It provides a balanced and rigorous examination system. 40% of patent applications are finally accepted by the EPO. In the area of biotechnology the grant rate is lower standing at 28%.

In doing so the EPO takes account of many interests in the application process such as:

• those of the applicant,
• third parties, and,
• society at large.23

Unitary (EU) patent and Unified Patent Court

In the coming days, there will be much discussion on a diverse array of topics, including the tentative agreement on a unitary patent and the issue of a Unified Patent Court in the European Union.

The proposed Patent Court would have a significant role to play when a unitary patent for Europe comes into being. This would be a further option for patent protection in 25 out of 27 EU Member States, in addition to the more traditional national and existing European patents.24

The unitary patent would be a European Union patent granted by the European Patent Office to which unitary effect would be given after grant, at the patentee's request. It would be valid in 25 EU Member States from the date of grant and it would be administered by the EPO.

As President Battistelli pointed out on Europe Day this year, instead of having to take a competitor to court in several countries to prevent infringement of a patent, the patent holder could, under such a system, take action against the infringer on a centralised basis before a single court, whose decision would apply in all the relevant EU Member States.25

The benefits of this system are thought to be:

• reduced costs by virtue of automatic unitary protection in 25 EU Member States,
• less translation obligations, and
• less administrative burdens, because the EPO will deal with all aspects of the application process such as the payment of renewal fees and maintaining a register of unitary patents.

These benefits would certainly help small and medium-sized businesses, and increase competitiveness in the EU, as it competes for business with Asia and the United States.

Agreement has been reached by EU leaders that the Central Division of the Court of First Instance of the Unified Patent Court would be located in three European cities with the seat of the Court based in Paris, while two sections of the Central Division will have thematic clusters based in Munich (dealing broadly with mechanical engineering) and London (dealing broadly with chemicals and pharmaceuticals).26 It is thought that this arrangement would avoid patent dispute litigation in multiple jurisdictions, increase legal certainty, and reduce costs.

The European Parliament has raised concerns about the agreement, in particular the non-role of the Court of Justice of the European Union in such a new courts system. The Parliament and its Legal Affairs Committee are due to resume their discussions on the agreement later this month.

In Ireland, the Minister for Justice and Equality has recently announced that Ireland's participation in any arrangement providing for the establishment of a Unified Patent Court would require a consideration of constitutional change, in the context of Article 34 of the Constitution of Ireland, which provides for the system of Courts in this jurisdiction.27 In Ireland, amendments to the Constitution are carried out by way of a referendum of the People.28

Therefore, there is much discussion, consideration and work required in individual countries and across Europe before such a proposal can come into effect. This Symposium will contribute immensely to that debate.

Conclusion

I congratulate the European Patent Office as well as the Irish Committee for Judicial Studies for organising this Symposium.

I thank all of my judicial colleagues for their involvement, in particular The Hon. Mr Justice Roderick Murphy, who has been to the fore in preparing for this event.

I sincerely thank the staff of the Irish Courts Service and the EPO for their invaluable assistance, without which this Symposium would not be possible.

I am very appreciative of all those who will chair and present papers at the different sessions in the coming days.

I wish you every success, or as we say in Irish "beirigí bua agus beannacht", meaning seize victory and good luck to you all.

I trust that you will do exactly that, by enjoying not only the Symposium, but also Ireland and this unique city.

Welcome to the Symposium.