European Patent With Unitary Effect: How To Carry On?

Mailroom of EU Council during summer reccess

On July 10, 2010, I had reported on the planned Organisation of work on the patent reform under the Polish Presidency. Now, as we still are within the summer recess period where nothing appears to move forward there might be a little stretch of time to contemplate as to how things might move on during next fall.

There is a recent precedent of successful adoption of enhanced co-operation in the EU: As we can learn from Wikipedia, with the rise in cross border divorce in the EU, common rules were put forward to settle the issue of where trans-national couples can divorce in the EU. However Sweden was blocking the new rules, fearing the loss of its liberal divorce law (divorce law differs strongly, with Nordic liberalism being in contrast to more conservative countries such as Malta which – until recently – did not even allow it). In order to allow those willing states to proceed without Sweden, in July 2008 nine countries put forward a proposal to use enhanced co-operation. At a meeting of the justice ministers on July 25, 2008, the nine states decided to formally seek the measure of enhanced cooperation; eight states formally requested it from the European Commission on 28 July 2008.

When analysing this narrative on the EU Council document repository, we get that there was a Council Document 9898/2/10 REV 2 titled Proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation – Adoption dated June 04, 2010. The corresponding Council Document concerning the European patent with unitary effect appears to be No 5538/11 dated February 11, 2011 titled Council Decision authorising the creation of unitary patent protection.

On December 13, 2010, Document 17523/10 was published titled Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. This Implementation Regulation was again amended and finally adopted by the Council.

Obviously there seems to be a two-step approach:

• In a first step, the basic question as to whether or not utilisation of the enhanced co-operation model is politically endorsed by a sufficient EU Council majority at all must be decided (Council Decision authorising the enhanced co-operation).
• In a second step, the details of the enhanced co-operation must be decided (Regulation of the Council [and the European Parliament, if applicable] implementing the enhanced co-operation).

In the field of EU patent law we do not yet have reached the point where the second step can be finalised. Available is Document 11328/11 titled Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection Proposal for a Council Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements – General Approach dated June 23, 2011. The General Approach still needs to be refined in order to reach a compromise which can be voted on in the EU Council.

Meanwhile, work on this Draft Implementation Regulation has been handed over to the somewhat ominous Friends of the Presidency Group; see my earlier posting here. Document CM 3913/11 tells us that the Friends of the Presidency Group (Patents) met on Monday, July 18, 2011 at 10h00, discussing

• Accessibility, functionality and effectiveness of Patent Litigation System – business perspective; and
• Continuation of the exchange of views on the new elements of the draft agreement on a Unified Patent Court and draft Statute introduced following Opinion 1/09 of the CJEU (Document 11533/11)

The deliberations were not open to the public; the results apparently are not known so far.

Nevertheless, what I expect to see is an advanced Draft of the Implementation Regulation in the Council maybe even as early as later this year.

As far as I understand the rules of the game, consent of the European Parliament to the Implementing Regulation is required before final adoption.

I do not have any clue as to how exactly the procedural effect of two lawsuits filed by Italy and Spain with the Court of Justice of the European Union will be:

• Document 12500/11 dated July 05, 2011, titled Case before the Court of Justice of the European Union – Case C-274/11 (Kingdom of Spain against Council of the European Union) – Enhanced cooperation in the area of the creation of unitary patent protection; now visible on the Curia website; and
• Document 12502/11 dated July 05, 2011, titled Case before the Court of Justice of the European Union – Case C-295/11 (Italy against Council of the European Union) – Enhanced cooperation in the area of the creation of unitary patent protection; now visible on the Curia Website.

I have any idea neither as to when the Court of Justice of the European Union will take a decision on both cases nor as to whether or not final adoption of the enhanced co-operation is to be delayed until then.

Stay tuned.

(Photo: U.S. National Postal Museum via Flickr.  No known copyright restrictions.)