Inhabitants of Delphi's Temple of Apollo left for modern Luxembourg Temple

Yesterday the members of the EU Parliament’s Legal Affairs Committee (JURI) voted in three separate sessions on the EU patent package (see nos. 18 to 21 of agenda):

  • Enhanced cooperation in the area of the creation of unitary patent protection, JURI/7/05848, Rapporteur: Bernhard Radkay (S&D).
  • Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, JURI/7/05847, Rapporteur: Raffaele Baldassarre (PPE).
  • Jurisdictional system for patent disputes, JURI/7/06168, Rapporteur: Klaus-Heiner Lehne (PPE).

Fitting into the parliamentary tradition of issuing celebrating press releases when it comes to the future EU patent system, like

yesterday’s post-vote press statement was titled

disclosing, besides the well-known mantras as to the beneficial effects of the new European patent system, the liberating message that

Legal Affairs Committee MEPs backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called “EU patent package” [...]. If Parliament as a whole and the Council confirm the deal, a new EU patent will be created.

Nota bene, while the headline itself is not that spectacular since it only refers to the much less controversial “EU Patent” (i.e. the European patent exhibiting unitary effect in the EU25 states), the statement itself suddenly and confusingly speaks of the whole “EU Patent Package”, i.e. the Unitary Patent and the Unified Patent Court.

But, as already wondered by the IPKat,

if anyone knows where the AmeriKat can find the latest drafts of the Regulation and Draft Agreement that were vote don during today’s JURI vote, please let her know.

Exactly. The crucial question is what did JURI actually vote on yesterday, after the Competitiveness Council meeting of December 5 failed (see our earlier posts [1], [2], [3]), which implies that there is no such thing as a text accepted by both EU Council and JURI as represented by rapporteurs Bernhard Rapkay (Unitary Patent Protection), Raffaele Baldassarre (Translation Arrangements) and Klaus-Heiner Lehne (Jurisdictional Aystem for Patent Disputes). However, before the decisive  December 5 Competitive Council meeting (see earlier post here), the three rapporteurs received a robust mandate to clear the unresolved issues – especially regarding the Unified Patent Court – and to prepare for an agreement with the Council in back-room-negotiations (see earlier post here) which apparently was achieved, as suggested by the press release of December 1 (confusingly also naming the “EU Patent” in the title and the “EU Patent Package” in the statement itself).

These preparational back-room pre-Council negotiations are the “political deal struck last 1 December between Parliament and Council negotiators” referred to in yesterday’s press release – but not any sort of ‘official’ agreement between JURI and the Council that might have the chance to enter into force one day.

Therefore, according to my interpretation, the drafts of the Regulation and Agreement that were voted on yesterday are presumably the same that JURI carried into the back-room negotiations and that were, at least to the extend of the Judicial System/Patent Court, not accepted by the Competitive Council on December 5 (see our earlier posts [1], [2], [3]):

  1. Unitary Patent: Proposal COM(2011)0215 with JURI draft report PE472.059,
  2. Language Regime: Proposal COM(2011)0216 with JURI draft report PE472.334,
  3. Judicial system: JURI draft report PE472.331.

As the original agenda for implementing the EU Patent Package proposed that the EU Council would on its December 5 meeting agree on something similar as the compromise found in the pre-Council negotiations between JURI and the Council so that JURI could let that pass on 20 December and the EU Council on its 22 December meeting, this desired outcome meanwhile is impossible to happen as there simply is no ‘EU Patent Package’ that the EU Council agreed on and JURI is satisfied with, due to those issues that were left unresolved at the December 5 Competitive Council meeting (see our earlier posts [1], [2], [3]).

JURI’s “green light” for the Unitary Patent doesn’t help much since the Polish Presidency’s end-of-term Council meeting on 22 December will most probably not be the day of initialling the EU Unified Patent Court, as originally expected by the Presidency, thus laying the whole project into the hands of the incoming Danish Presidency. However, as nothing is impossible in this decades old saga, I wouldn’t categorically exclude that the German and UK Council delegations agree on the vacant seat of the Central Division of the Unified Patent Court (maybe for a compromise location like Luxembourg or Milan) on the very last metres and by that enable initialling the ‘Warsaw Convention’ tomorrow (should the seat really be the only unresolved issue which is unlikely though).

But the by far most likely scenario is that yesterday’s JURI voting didn’t change much.

UPDATE (23.12.2011): Meanwhile it is clear that it came as expected above. The initialling ceremony for the Agreement on the Unified Patent Court was quitely omitted by the Polish Presidency, since there was nothing to celebrate. Instead, the incoming Danish Presidency prepares its term by concentrating on a number of top issues among which is, once again, the poor old common European Patent system awaiting its next metamorphosis (see fact sheet).


(Photo 2010 by Chucknado via Flickr under a CC license)

About The Author

Volker 'Falk' Metzler

European Patent Attorney, German 'Patentanwalt', European Trademark and Design Attorney, Computer Scientist, PhD, IP Blogger, Father of Two, Mountain Enthusiast

4 Responses to EU Patent Package: JURI has Spoken, But What did it Say? (UPDATE)

  1. Rebentisch says:

    We should at least insist on a Court in Germany.

  2. Gibus says:

    See my comment on IPKat blog:

    For the regulation on the unitary patent, the vote has confirmed what has been agreed in trilogue with the Council, i.e. the 4th column of the document leaked here. Amendments voted in JURI can be found here

    The same apply for the regulation on the linguistic arrangements. But note that the European Parliament for that regulation is only a non-biding opinion, the Council decides not in co-decision, and not with qualified majority vote, but based on unanimity of the 25 participating Member States. I haven’t covered that regulation on

    For the unified patent jurisdiction, the role of the European Parliament is even less significant. The Lehne’s report voted on Tuesday amounts only to a resolution indicating to the Council what the EP wants to be included in the international agreement. In its current form, this agreement will be signed by some Member States. The EU is not a party to this agreement, therefore it is not even the Council who decides, but Member States. Note that it can be questioned whether EU not being a party is compliant with the Treaties, EU law as developped by ECJ case law and Opinion 1/09. This is notably questioned by Luxembourg in a published document on the Council register, but any answer from Council’s legal service is not public, see The result of JURI vote on this “resolution” can be found on

    There is notably an interesting amendment on the independance of judges for the newly unified patent court: Compromise amendment 6, by the rapporteur, which covers ITRE paragraph 4, to Paragraph 10 – point iiia (new). As far as I can see, the text of compromise amendments in the “Lehne report” are not published on EP website. Here’s the text of this amendment:

    “(iii)a (new) is of the opinion that the Agreement should contain safeguards ensuring that judges are only eligible if their neutrality is not in question, especially if they have served as Members of boards of appeal of a national patent office or the EPO;”

    As a “compromise amendment”, it can be guessed that such a provision as been accepted by Polish presidency and will be included in last or future drafts of the agreement…

    So, what has been voted by JURI on Tuesday, was only what has been agreed with the Council in trilogue. No other amendment has been accepted (including Wikström/EPLAW/Jacob amendments to delete arts 6-9 from the regulation). Even amendements suggested and voted by ITRE committee for opinion have not been incuded. (for eg. ITRE Am. 11 recalling that the “rights conferred by the European patent with unitary effect shall accord with rights conferred by the Treaties and Union law”, which is something the regulation cannot escape) have been rejected.

    The conclusion from this vote is that JURI has just blindly voted.”

  3. Tim Roberts says:

    It is distressing that press releases about the Unitary Patent continue to quote the following alleged statement by the European Commission: “… when the new system is up to speed, an EU patent may cost just €680, compared to an average of €1,850 for an American one.” It undermines confidence in anything else they say.