Update on EU Unitary Patent Proposal

By On April 27, 2012 · 1 Comment · In EPO, EU law, Unitary Patent

CIPA Tweet Reporting Ms Wilcox' Statement

Yesterday, in Berlin the German industry association Bundesverband der Deutschen Industrie e.V. (BDI) has held a conference titled Tag des geistigen Eigentums – Geistiges  Eigentum verpflichtet (Intellectual Property Day - Property entails obligations). According to a report published on Heise’s Newsticker the topic of the pending proposal for a Unitary Patent was discussed.

Reportedly Mr Christoph Ernst from German Ministry of Justice (Bundesjustizministerium) has re-affirmed his expectation that a conciliation on this matter can and will be reached until next meeting of the EU Competitiveness Council to be expected end of May or in June later this year.

Mr Lothar Steiling, Director Intellectual Property with Bayer AG and President of the VPP (German Association of Intellectual Property Experts), is reported to have supported the proposed enhanced co-operation to create a Unitary Patent on behalf of those circles of insustry which have decided not to oppose the pending draft contrary to the dismissive language used especially be EPLAW. Another supportive statement came from Mr Andreas Thürer, Director Intellectual Property with Bosch Rexroth.

Ms Kerstin Jorna from EU Commission DG Internal Market is said to have argued more cautiously, considering that the proposal still might fail. She explicitly appealed to the representatives of German Industries to come forward in support of the Unitary Patent.

Furthermore, statements of FFII as well as of representatives of the German Piratenpartei are said to have expressed their concerns especially that the Unitary Patent might turn out to be a tool to facilitate legal acceptance of software patents (patents on computer-implemented inventions CII).

Now turning away from that BDI conference held in Berlin yesterday, other voices are to be reported. In particular Baroness Wilcox,  UK Parliamentary Under-Secretary for Business, Innovation and Skills, reportedly has stressed certain political positions of the UK Government with regard to the Unitary Patent proposal, in particular their opposition against bifurcation (i.e., separation between infringement and nullity proceedings which is optional in the current draft) and a strong demand to see the central division of the anticipated Unified Patent Court be seated in London; see the picture above showing a tweet of CIPA, the Institute of British patent attorneys. (See also Darren Smyth’s report at IPKat here)

Last year, almost once per week new draft papers on the Unitary Patent project surfaced, originating from the EU bureaucracy in Brussels. Meanwhile, the silence is deafening: No news emerging from there. All stakeholders are strainedly waiting for important things to happen: I don’t expect to see any substantial move concerning that Unitary Patent matter prior to the second round of the French presidential elections to be held on May 06, 2012. Ms Merkel, German Chancellor, still appears to be in strong support of Mr Sarkozy, currently incumbent as President of the French Republic. However, his callenger, Mr Hollande, emerged from the first round of the elections in a quite strong position. Reportedly the relationship between Ms Merkel and Mr Hollande is continuing to deteriorate rapidly in particular as Mr Hollande appears to insist on re-negotiating the EU fiscal treaty aimed at reducing debts to include measures to encourage growth much of dismay of MS Merkel.

A solution for any open questions concerning the Unity Patent proposal surely can be reached only if Berlin and Paris are able to reach some common ground. Should Mr Sarkozy get re-elected, he might see himself being politically deeply in Ms Merkel’s debt, a situation which might enhance Germany’s chances to get the seat of the Central Division provided that all other issues can be sorted out. There are even rumours that the seat might then be given not to Munich but to Hamburg to please Scandinavian states. But what happens if Mr Hollande turns out to become the next President of France? It is known that in general Mr Hollande is more open to positions of critics of the current system of Intellectual Property than Sarkozy ever was. Maybe that detoriating German – french ralationships plus reservations against patents might eventually kill the Unitary Patent under a presidency of Mr Hollande. But: arguing in a campaign is one thing, and ruling a State under the limitations imposed by reason of state is quite another.

Hence, stay tuned. Probably we shall learn more news in the weeks coming after May 06, 2012.

 

 
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Axel H. Horns

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One Response to Update on EU Unitary Patent Proposal

  1. Gibus says:
    April 27, 2012 at 14:25

    One of the most interesting news about the unitary patent and the associated unified patent court came last week in a paper from Hanns Ullrich, Max Planck Institute for Intellectual Property and Competition Law.

    Readers of ksnh blog should be interested by this academic analysis, in particular by the following quotes:

    “Nothing in the nature of enhanced cooperation and its relationship with
    the European Patent Organization stands in the way of conceiving the
    unitary patent, as one must, as an autonomous title of protection, which
    is fully based on European Union law, albeit of territorially limited
    scope.”

    “one hardly dares to inquire into the reasons, which have
    driven the Union’s legislator, Commission, Council, and Parliament,
    to adopt this monstrous, multi-tentacular patent protection, which they
    will no more be able to tame.”

    “Art. 142 EPC was meant to constitute the link to the once companion
    Convention on the Community patent. When the Union took over the project
    with a view to establish a system of patent protection of its own, the
    Art. 142 EPC route was blocked. Instead, the Union had to become a
    member of the EPO, this accession requiring an amendment of the Art. 166
    EPC (see supra n.149). One reason why interested circles began to push
    for cutting the language issue by moving to enhanced cooperation was the
    assumption that it might open again the Art. 142 EPC route, thus helping
    to avoid another loss of time and the risk of complications associated
    with a revision conference for the EPC. Accordingly, Art. 1, 2nd sent.
    Draft UPP Regulation pretends, by way of a legal fiction, that the UPP
    Regulation constitutes the “agreement” within the meaning of Art. 142
    EPC. This may well be the intention of the Member States participating
    in enhanced cooperation. But does this intention matter or rather the
    text of Art. 142 EPC, which is a rule of public international convention
    law? Is it the will of the group wishing to have the EPO granting
    unitary patents for them, which is decisive, or the will of the framers
    of the EPC and of all its Contracting States? The question seems to be
    trivial, given that the UPP Regulation guarantees the unitary effect as
    required by Art.142 EPC. However, there is not only a taint of
    circumvention of the law by Art. 1 proposed UPP Reg., which results from
    the desire to escape the constraints of a revision of the EPC. Rather,
    it matters both for the EPO and for the EU, whether the Union will be
    able to act as a member, whether it will at least be able to act as a
    common spokesman, who is legitimized by that enhanced cooperation is a
    matter also of the EU and by that, in its substance, the unitary patent
    will rest on EU law, or whether it is some Contracting States only,
    which, as such, act as a group within the EPO. At the latest, when all
    EU Member States will join enhanced cooperation, thus transforming it
    into a full EU group, both the EPO and the EU will realize that Art.142
    EPC was a shortcut leading into the wrong direction.”

    “Note, that such substance and uniformity may not be maintained by
    transposing Art. 6 – 9 of the Proposal of a UPP Regulation to the draft
    Agreement on a Unified Patent Court, as proposed by a resolution of
    28/29 October 2011 of the “Intellectual Property Judges Association “
    under the strongly voiced presidency of R. Jacob , and supported by an
    opinion given by Kraßer for the European Patent Lawyers Association (all
    available at http://www.eplawpatentblog.com/...). This lobby initiative has
    been carried to the EP Legal Committee by MEP Wickström (see EP Legal
    Committee, Draft Report Rapkay, EP Doc. 2011/0093 (COD) of 27 October
    2011, Amendment 65 – 67), but for good reason has not been retained. Not
    only does this proposal empty Art. 118 para.1 TFEU of its substance and
    carry the unitary patent out of the Council’s authorization of enhanced
    cooperation, since this agreement is to be concluded between the Member
    States alone as an international convention outside the framework of the
    EU. Rather, it also means that all the substance of the unitary patent
    will be derived from public international law, and, thus, although part
    of the framework regulation of the Internal Market, will be outside the
    reach of the EU as regards any future amendments as well as beyond the
    reach and oversight of the ECJ. The latter, of course, is precisely the
    objective of the judges’ move, the reasons given being fears of delays
    in infringement proceedings, and, indeed, that “the rulings of the
    non-specialist CJEU would (not)be clear”, and that “the whole point of
    creating a specialist patent court for Europe would be lost” (Jacob,
    ibid.). This shows that every possible attempt is made to escape EU law.
    However, the purpose of Art. 118 TFEU precisely is to confer upon the EU
    the power to establish an intellectual property system and a policy of
    its own. The provision has not been introduced to enable the EU to
    delegate that policy to Member States. In this respect, enhanced
    cooperation does not make a difference. Rather, it must be implemented
    in the same EU-perspective, since its objective is to intensify market
    integration with a view to expand it to the entire EU.”

    And many other drawbacks in the curent regulations/agreement like the lack of provisions about compulsory licenses…

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