Polish Presidency May Not Celebrate ‘Warsaw Convention’ as EU Patent Deal is at the Tipping Point (UPDATE)

When Poland took over the EU Council Presidency in summer, the incoming Polish Presidency emphasised in a Note its determination to wisely utilise the “momentum for finalising the legislative processes” and “to continue the work in parallel on both [creation of unitary patent protection and creation of a unified patent litigation system], with a view to reaching an overall political agreement within the Council at the end of this year”.

In November, the Polish Presidency announced in Document 17539/11 its intention to organise an initialling ceremony whereby the text of the Unitary Patent Court Agreement could be finalised in Warsaw on 22 December 2011 (see also here). As the Competitiveness Council meeting on 5 December 2011 ended with the positive news that only the seat of the Central Division of the Unitary Patent Court remains to be decided, hopes increased that the new European Unitary Patent may become reality by the end of this months, when Poland will pass the Presidency baton over to Denmark.

Now more and more critical voices show up [1, 2] and suggest to go slowly and better take a few more months to avoid a disaster. Since additionally issues that thought to be fixed appear to be uncertain again [3, 4] while unresolved issues become more complex [5], the Presidency appears to lose its positive attitude and turns increasingly frustrated, as unanimously reported by at least two reliably sources (Bloomberg, EurActiv):

Another disappointment was Poland’s inability to ink a final agreement on the EU patent. [Poland's Secretary of State for European Affairs] Mikołaj Dowgielewicz said his country had put a lot of effort into finalising the patent agreement, which is almost entirely secured. But he said the Polish presidency has “hit a wall” because of the opposition of “one or two member states” over the location of the central patent court. The candidate cities are London, Munich and Paris. Poland had nourished hopes to crown its EU presidency with a signing ceremony of the unified EU patent in Warsaw on 20 December. [...] “I’m not sarcastic here, it’s a sad remark, but the most contentious issue has become who will have the seat of the court with the budget of a few million euros and a staff of 15 civil servants,” the Polish official said.

Before this background, one may speculate that European patent litigators demanding an emergency braking (see here) hardly can believe their luck now that the legislative process appears to come to a halt – but not quite becaue of their substantive concerns but due to the fact that there is still no political agreement on the seat of the Court’s central division. The tactical situation of the race for the Unified Patent Court is summarised in an IAM blog posting as follows:

As the country which litigates the most patents in Europe each year, Germany would be the logical choice, as far as I can see; though fears have been raised that should the court end up in Munich or another German city it could lead to the de facto adoption of bifurcation when decisions are made about validity and infringement. The French may think they are owed something [for lifting] the country’s effective veto on the adoption of the London Agrememet on Translations that signalled a new seriousness in getting a wider patent deal done. As for the British, they seem to be coming into the game rather late – having let the Germans and the French, as well as several smaller countries such as Portugal and Slovenia, do the heavy lifting while they watched from the sidelines,

wheras the fear of a bifucated system in case the Court comes to Germany appears unfounded since the tabled Agreement allows valitity counter claims within infringement proceedings, such that litigation and validity will not be separate and individual proceedings as in the German litigation system. 

Two further factors for the choice of the country hosting the 1st instance central division, are the separatist role British Prime Minister David Cameron played at the recent EU summit intended to rescue the Euro currency (see here) and the fact that with EU Commissioner Michel Barnier and EPO President Benoît Battistelli two important players in this game are Frenchmen.

Overall, it in fact sounds as if we will rather get a ‘Copenhagen Patent Convention’ than a ‘Warsaw Convention’ – at best.

UPDATE (17.12.2011): A more positive attitude has been expressed today by EPO President Battistelli, who sees the glass least three-quarters’ full and remains optimistic about the final outcome:

[...] Although no final decision was taken, well-informed sources say that agreement is not far off [...] but the last few steps can often be the most difficult ones.

The main sticking point, apparently, is the location of the future court’s central division. But that is in itself an indication that the negotiations are nearing their end. [...] If agreement is not reached under the current Polish presidency, it should certainly be accomplished during the next (Danish) one. [...]

One particular aspect is that technically specialised judges will sit on the new court. Some reservations have been expressed about quality and efficiency, but that is inevitable with such an ambitious new project, especially one affecting legal and jurisdictional frameworks. We heard similar things when the EPO was being set up, but over thirty years on it has become one of Europe’s great success stories.