JURI Legal Committee Of The European Parliament Deals With EU Unitary Patent

Even beyond the Draft Report on a jurisdictional system for patent disputes (Rapporteur: Klaus-Heiner Lehne) reported earlier (here and here) there appear to exist a number of interesting papers of the Committee on Legal Affairs of the European Parliament (JURI) available on-line:

• Document PE472.331v01-00: Amendments 1 – 25 / concerning “Motions for a resolution” – Draft report by Klaus-Heiner Lehne (2011/2176(INI)) – Jurisdictional system for patent disputes;
• Document PE472.334v02-00: Draft Report on the proposal for a Council regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (COM(2011)0216 – C7-0145/2011 – 2011/0094(CNS)) including Amendments 1-19; Rapporteur: Raffaele Baldassarre;
• Document PE472.334v02-00: Amendments 20 – 47 / Draft report by Raffaele Baldassarre (2011/0093(COD)) - Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements; and
  
• Document PE472.059v02-00: Draft Report on the proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD))including Amendments 1 – 44; Rapporteur: Bernhard Rapkay; and
• Document PE472.059v02-00: Amendments 45 – 94 / Draft report by Bernhard Rapkay (2011/0093(COD)) - Proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection / Proposal for a regulation (COM(2011)0215 – C7-0099/2011).

These papers apparently have been discussed during the recent meeting of the Legal Committee held on November 21-22, 2011, in Brussels (Document PE475.963v01-00). I have no clue so far as to the outcome of that session.

Obviously some of the proposed amendments reflect political thinking and resulting wishes of various MEPs concerning the final shape of the Regulation. Many of the proposed amendments refer to Recitals and are worded to set out various political aims more clearly.

A. Amendments to the proposed Resolution of the European Parliament in view of the EU Patent Court:(PE472.331v01-00)

For example, Ramon Tremosa i Balcells MEP wants to see paragraph 2 of the section on “Motion for a resolution” amended to read:

2. Encourages Member States to conclude the negotiations and to ratify the agreement without undue delay; calls upon Spain and Italy to join in the enhanced cooperation procedure;

Such amendments appear to reflect pure symbolic politics. Moreover, some MEPS express their concerns that the entire project of a Unified Patent Court might be against the law; e.g. Antonio López-Istúriz White, Antonio Masip Hidalgo, Luis de Grandes Pascual MEPs proposing an amendment like this:

6. Acknowledges that the establishment of a coherent patent litigation system in the Member States taking part in the enhanced cooperation should be accomplished by an international agreement (‘the Agreement’) between these Member States (‘Contracting Member States’) creating a Unified Patent Court (‘the Court’); nevertheless expresses doubt, in the light of various texts, such as  Opinion 1/09 of the European Court of Justice, as to whether that international agreement is compatible with the TFEU;

Interestingly, the option of an all-English language regime in the Court appears not to be entirely dead in the European Parliament; Antonio López-Istúriz White, Luis de Grandes Pascual, Antonio Masip Hidalgo MEPs are suggesting that:

[...] at the duly justified request of one of the parties in the main proceedings, and after hearing the other parties, the court may decide that the language of proceedings shall be English; within a reasonable period of time, the language of the proceedings should always be English;

Moreover, Cecilia Wikström MEP also comes to the question of professional representation before the Court, suggesting

(v) the parties should be represented only by lawyers authorised to practise before a court of a Contracting Member State and/or by European Patent lawyers who are entitled to appear before the European Patent Office;

B. Amendments tabled in view of Proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD)):

The Draft Resolution reads:

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION on the proposal for a Council regulation implementing  enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements
(COM(2011)0216 – C7-0145/2011 – 2011/0094(CNS))
(Special legislative procedure – consultation)
The European Parliament,
– having regard to the Commission proposal to the Council (COM(2011)0216),
– having regard to Article 118(2) of the Treaty on the Functioning of the European Union,
pursuant to which the Council consulted Parliament (C7-0145/2011),
– having regard to Rule 55 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A7-0000/2011),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union;
3. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
4. Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal;
5. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Known amendment proposals 1 – 47 need to be analysed in detail later.

C. Amendments tabled in view of the proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD))

The Draft Resolution reads:

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION on the proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to Parliament and the Council (COM(2011)0215),
– having regard to Article 294(2) and Article 118(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0099/2011),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union, – having regard to Rule 55 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Industry, Research and Energy (A7-0000/2011),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Known amendment proposals 1 – 94 need to be analysed in detail later. There are remarkable attempts to utilise the introduction of the Unitary Patent for other political desires, in particular for amending (in particular: reducing) the scope of patentable subject-matter. For example, Françoise Castex MEP suggests a new Recital 23a as follows:

(23a) In view of the current European Patent Convention and the importance of Article 53 thereof, which relates to exceptions to patentability, notably in the field of living things, a clause providing for the automatic inclusion of any future changes to EU law should be inserted into that Convention;

Moreover, Eva Lichtenberger and Christian Engström MEPs would like to see a new Article 3a introduced, reading as follows:

Harmonisation of substantive patent law

By …, the Commission shall present a proposal for a directive of the European Parliament and of the Council, along with an impact assessment, for harmonisation of substantive patent law relevant for European patents with unitary effect.

The same MEPs go even further by introducing a proposal for Articles 3b and 3c as follows:

Article 3b
Patentability of inventions
1. European patents with unitary effect shall be granted for any inventions, in all fields of technology, provided that they are new,  involve an inventive step and are susceptible of industrial application.
2. The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.

Article 3c
Patentability of computer-implemented inventions
1. A set of instructions for solving a problem by means of an automated system consisting only of generic data processing hardware (universal computer), also called “program for computers” or “computer-implemented solution”, is not an invention within the meaning of substantive patent law applicable to a European patent with unitary effect, regardless of the form under which it is
claimed.
2. A claimed object can be an invention in the sense of substantive patent law applicable to the European patent with unitary effect only if it contributes knowledge to the state of the art in a field of applied natural science; an invention is a teaching about cause-and-effect relations in the use of controllable forces of nature.

Well, FFII agitation of the first half of the 2000-2010 decade is coming back to us again here. By the way, Mr Christian ENGSTRÖM is member of the Pirate Party associated to the parliamentary group of the EFA/Greens in the European Parliament.

[UPDATE 2011-11-24 1645h] Thanks to @gibus on Twitter I have been made aware of a report saying that

On November 22nd, 2011, the Legal Affairs Committee of the European Parliament voted for a mandate, allowing the rapporteurs on the proposal for a unitary patent to pursue negotiations with the Commission and the Council behind closed doors, without any involvement from the rest of the Members of Parliament or any reporting to citizens.

Frankly, this is appalling. Intellectual Property in general and this cornerstone of European patent politics in particular should not be negotiated in darkness and shrouded by secrecy. After ACTA, this is the second big project where influential policymakers prefer to flee the light of public discussion and seek to refuge by shrouding with secrecy what should be in the open.

[UPDATE 2011-11-24 1810h] See also this report on europolitics.info.