The IP field seems to have a favourable wind behind it in Finland. Of two long-debated IP initiatives, the one concerning centralization of Finnish IP disputes has reached its goal and the other one concerning EU wide patent protection has reached a remarkable milestone. The Finnish Parliament passed an act in December 2012, which will centralize the settlement of IP disputes to the Market Court from 1 September 2013 onwards. Respectively, the European Parliament approved the EU unitary patent rules in December 2012, which will enable the registration of a European Patent with unitary effect ("Unitary Patent") presumably from 2015 onwards, depending on the ratification progress of the international agreement on a Unified Patent Court by the participating Member States.
New IP Court
As a result of the new act, the handling of IP issues will be centralised in one instance, which is likely to improve the legal certainty of the decisions and to make the process more professional and efficient as well as quicker. It is very good news that judges will have real possibilities to specialise in IP issues, which should bring about better predictability, more high-quality decisions and an improvement in legal protection to IP right holders.
All copyright and industrial right-related disputes and administrative disputes, such as appeals against decisions made by the registration authorities, as well as interim measures related to any of the foregoing will be handled by the Market Court. The Market Court will also handle and resolve possible appeals against the decisions made by the Finnish Communication Authority by virtue of the Finnish Domain Name Act. Criminal cases will remain in the district courts. The upcoming change will also finish an unwanted outcome of having contradicting decisions between the Helsinki District Court that handles IP disputes initiated prior to the end of August 2013 and the Market Court that grants injunctions by virtue of the Unfair Business Practices Act. It has not been very uncommon that right holders have first brought actions against copycats before the Helsinki District Court claiming that these third parties infringe their trademark or design rights and thereafter brought actions against the same third parties before the Market Court claiming that they slavishly copy and imitate the right holders' product and hence act in breach of the Unfair Business Practices Act. From 1 September 2013 onwards a right holder does not need to evaluate from which court one would, most likely, get the best and most efficient outcome, as the right holder may combine and include these claims in one action before one single competent court.
The IP proceedings are also likely to become much quicker as there is no automatic possibility to appeal under the new act. A party may appeal against a decision by the Market Court to the Supreme Court of Finland only, provided that the Supreme Court grants the appealing party leave to appeal. The same applies to the Supreme Administrative Court of Finland regarding appeals against decisions by the Market Court in an administrative IP matter. The fact that there may, rather seldom, be a possibility to appeal, may naturally raise some concerns but upon centralisation of expertise the quality of decisions should reduce the need to appeal. Furthermore, in a quickly changing business environment the right holders as well as users of IP are likely to prefer quick final decisions to the possibility to appeal.
Unitary Patent – Hopefully Good News
After almost 40 years of endless debating, the European Parliament finally approved the Unitary Patent rules in December 2012. According to these rules, the right holders may have the opportunity to file an application for a patent that would be valid in most of the Member States or at least in those Member States which have ratified the international agreement. The entry into force requires that at least 13 Member States, of which three must be France, Germany and the UK, will ratify the agreement on a Unified Patent Court that was signed by 24 Member States on 19 February 2013. Poland and Spain are currently outside the new regime, but will possibly join in at a later stage. Bulgaria is expected to sign the agreement in the near future.
The new regime does not replace the existing systems but will be another option for patent applicants. The main goal of the new regime is to reduce patenting costs. An applicant should get the best cost benefits out of the new regime by filing a patent application that would cover all contracting states. In case the applicant considers that, for example, only three Member States are relevant for its business, the existing systems may be more cost efficient. Although the goals of reducing costs and providing a one-stop-shop for EU wide patent protection are worth striving for, there are several open questions which may raise some concerns. There is no clear indication that the patenting process would become more efficient and quicker. Furthermore, the amount of translation costs remains unspecified.
The new Unified Patent Court should address the following existing challenges in relation to enforcement or revocation of a European patent: 1) high costs; 2) risk of diverging decisions and lack of legal certainty; 3) forum shopping; and 4) differences in speed and the level of damages awarded. On the other hand, a patent holder may possibly not see these challenges only as a negative issue as upon the new regime there is a risk that the patent will be lost for the whole EU instead of losing it in one Member State only. In addition to the Unitary Patents, the Unified Patent Court will have an exclusive jurisdiction for litigation relating to European patents with the following exceptions: a) during a transitional period of seven years after the date of entry into force of the international agreement, an action may still be brought before national courts, and b) a holder of a European patent may opt out a European patent from the exclusive competence of the Unified Patent Court before the expiry of the transitional period.
The Unified Patent Court will consist of a court of first instance and a court of appeal. The court of first instance will be composed of a central division (with a seat in Paris and two sections in London and Munich) and by several local or regional divisions in the contracting states. The court of appeal will be located in Luxembourg. The new Finnish IP court could have a good chance in becoming a local division, where the language of the proceedings could be Finnish. This would, presumably, be appreciated by Finnish entities.
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