Yesterday I had posted an article on the failure on the 3169th meeting of the Council of the EU in Competitiveness configuration (Internal Market, Industry, Research and Space) which was held in Brussels. As indicated, the final result was that the decision on the seat of the central division of the EU Unified Patent Court is said to be taken by the European Council at its meeting on June 28 and 29, 2012.
Well, the European Council should not be mixed up with the Council of the European Union.
The European Council consists of the Heads of State or Heads of Government of the Member States, together with its President and the President of the Commission. It defines the general political direction and priorities of the European Union. With the entry into force of the Treaty of Lisbon on 1 December 2009, it became an institution. Its President is Mr Herman Van Rompuy.
To the contrary, the Council of the European Union is the EU institution where the Member States’ government representatives sit, i.e. the ministers of each Member State with responsibility for a given area. The composition and frequency of Council meetings vary depending on the issues dealt with.
I must confess that due to some sloppiness in writing and in sake of brevity I frequently have labelled the Council of the European Union as “EU Council”, even in this blog. This is confusing. I should avoid this language in future.
So, after this preliminary digression it is now clear what will happen on June 28 and 29, 2012:
Ms Merkel and all of her colleagues on EU level are poised to undertake a (final?) approach to find a political solution to the question of the seat of the central division of the EU Unified Patent Court. Maybe that there is even a slim chance is that Spain and Italy (which now have changed their respective government since the failure of the EU Community Patent approach in 2010) jump on the bandwagon.
The German broadsheet Handelsblatt today runs a story indicating that on the 3169th meeting of the Council of the EU held yesterday the German delegation kept on fiercely fighting for Munich as seat for the central division but on the level of ministers no agreement could be reached.
In view of this situation it appears to be quite safe to say that the EU Unified Patent Court and, of course, the linterlinked enhanced co-operation for creating a EU Unitary Patent, will not only be dead with regard to the duration of current Danish EU Presidency (ending on July 01, 2012 anyway) but probably also for a much longer time should the EU Euro crisis rise to higher levels such that the Heads of State / Heads of Government to be assembled in Brussels later this month need to be busy with firefighting on a full-time basis, having no spare time to resolve Intellectual Property issues.
In the Handelsblatt story, unidentified EU Diplomats are cited to have said that a solution will probably be found as part of a “package”. This means that the country receiving the seat will be required to give in concerning some other compromise elsewhere. Or, the other way round: A country that is very generous elsewhere might expect to receive the seat of the central division on the basis of reciprocation. Hence, if the Euro crisis does not hamper the entire summit, Ms Merkel might have a chance to bring home the central division as some sort of a consolation gift if she gives in with regard to some of the pressing issues in the context of the current EU (Euro) crisis.
Furthermore, Handelsblatt explicitly writes that especially the Italian Government might be ready to join the club in a last minute move but was unable to do so yesterday because of they were unhappy with the state of the discussion on the seat issue. I can only hope that they do not carry on with nurturing pipe dreams of bringing the central division to Milan.
Obviously nobody on EU level is seriously negotiating any technical details of the patent package (Unitary Patent including translation agreement plus Unified Patent Court) any more. As said before, patent experts have been kicked out unceremoniously. If (and only if) an agreement on the seat issue is reached, the entire matter probably will be pressed on an as-is basis through the institutions anyway.
“Italy proposed, in February, its candidacy for the seat of the central division of the unitary patent court system as a way of breaking the stalemate. Although its proposal was initially rejected because it was presented after the deadline of 4 December 2011 for the submission of candidacies, it has come back to the fore. “The Netherlands did the same recently, stressing that it did not wish to make the situation worse, but to propose The Hague as a candidate in order to calm the debate,” an informed source told Europolitics.”
This means that the Italian Government indeed wants to cash in sort of a dividend on dropping Mr Berlusconi’s opt-out refusal to join the EU Community patent project in 2010. I am not amused.
Today, the 3169th Council meeting of the EU Council in Competitiveness configuration (Internal Market, Industry, Research and Space) was held in Brussels, chaired by Mr Ole Sohn, Minister for Business and Growth of Denmark. According to Document 10362/12, the Council
– held a preparatory debate in order to gather consensus on the location of the seat for establishing a unified patent court, with a view to a successful decision on the seat by the European Council at its meeting on 28-29 June 2012.
This means, of course, that once more no political solution was reached.
A few days ago, the Danish Presidency had circulated an important Document 10059/12 titled Draft Agreement on the creation of a Unified Patent Court – Suggested way forward for a political agreement which, however, – but no surprise – was not released to the public.
I have heard rumours from confidential sources that at the end of 2011 under the Polish EU Presidency some or all of the political actors dealing with the EU Unitary Patent / EU Unified Patent Court matter decided to drop all expert advice from (internal) civil service experts (from the EU Commission and the delegations of the EU Member States present at the EU Council meetings) in order to force a breakthrough by some purely political decision on the seat of the central division of the Unified Patent Court. If this is true, this information might indeed be suitable to shed some light on the somewhat strange situation last December, when the announcement of the Polish Presidency communicated by Document 17539/11 to organise an initialling ceremony whereby the text of the Unitary Patent Court Agreement could be finalised in Warsaw on 22 December 2011 was eventually rescinded with no clear indication of what really had happened behind the scenes. The official line appeared to be that all problems but the seat of the central division are solved whereas other voices indicated that more substantial issues were still open. Probably the political staff had decided to ignore all opinions from the internal experts, concluding that the entire EU patent project is not suitable to generate a consensus in any foreseeable time amongst experts skilled in this field of law.
Ministers addressed the last outstanding issue in the draft agreement for the creation of a Unified Patent Court, with a view to finalising the “patent package” without delay.
The debate showed that further work was needed to reach consensus on the location of the Central Division of the Court of First instance for the future unitary patent jurisdiction.
At the time being it is not known to me as to what nature the further work was needed to reach consensus on the location of the Central Division of the Court of First instance is supposed to be.
Now that François Hollande took office as the new President of France after his marginal victory in the French presidential elections this May, he will now introduce himself to official EU policy on his first Competitive Council meeting on May 31/June 1. The draft agenda for this meeting (cf. item 19), reading “Draft agreement on a Unified Patent Court and draft Statute – Political agreement“, electrifies observers of and parties involved the ongoing European patent legislation saga (see also press release, middle of page 5).
In recent months the upcoming French elections brought the negotiations on the Unified Patent Court Agreement to a complete standstill, as the dynamics between the French, British and German heads of govenment and the general political climate is a crucial factor in this legislative process, especially since the only serious and realistic candidates for the attractive seat of the new UPC Central Division are Paris, London, and Munich and it is frequently announced through official channels that this question is the only remaining open issue.
The EU Council expressed already in January this year its believe that a final agreement can be reached in June 2012 (see official statement) and it was the President of the European Council, Herman Van Rompuy, who clarified in a recent letter that he hopes (or expects) the remaining issues to be sorted out at next week’s Competitiveness meeting:
“[...] This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council.”
But IP matters will not become easier in Europe with Mr Hollande, given his apparent openness to positions of critics of the current patent system. In fact, some of the answers (pdf) of Ms Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team, on a tendentious pre-election questionnaire of French anti software patent group “April” appear as if the socialist candidate for president (or his spokeswoman) was one of the ideological leaders of that pressure group:
The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
Recently, the Federal Ministry of Justice under Sabine Leutheuser-Schnarrenberger (Liberal Democrats/FDP, @sls_bmj) submitted a proposal for amendments to patent law and other laws of intellectual property (cf Draft Amendment, in German) that were approved this week by the Federal Cabinet. To enter into force, the Amendment still needs to be approved by the Federal Parliament (“Bundestag”) which, however, is only a formality given the present clear parliamentary majority.
The amendments to the Patent Act (Patentgesetz, PatG) aim at reducing bureaucracy and providing for more flexible and cost-efficient proceedings before the German Patent and Trademark Office (DPMA/GPTO), cf. press release (machine translation).
One important measure to improve cost- and procedural efficiency at least for the Office was the introduction of the electronic case file system ElSA which enables the GPTO to process patent and utility model files fully electronically. The present Amendment regulates inter alia the – long overdue – public access to the electronic ElSA files in order to provide for some cost- and procedural benefits to applicants and attorneys as well.
Until some fifteen years ago, it was common sense that internal proceedings of lawmakers in Government, Parliaments and Parliamentary Committees can’t be open to each and every interested individual of the general public: It was simply commercially infeasible to make photocopies of all relevant documents and send them out for free to everyone who would like to read them. Beyond the group of genuine members of such bodies there always has been a culture of establishing some sort of extended inner circle based on status and privilege where members thereof would receive prints of photocopies important papers via postal service. It was really a privilege to be part of such circles, and in the field of Intellectual Property legislation usually this status was reserved for dignitaries like Presidents of the Insitute of patent attorneys or the like.
At least in some fields commercial alternatives were available. I remember that in the 1980s I started an experiment on my own: Eager to learn about the inner workings of German politics, I subscribed to a relative small subset out of the full range of Official Printed Matters (Drucksachen) of the lower chamber of the German Parliament (Bundestag) covering legislative drafts and minutes of parliamentary debates in certain fields of politics I was interested in. Those Bundestags-Drucksachen were printed and distributed for a fee by a small publishing company Verlag Dr. Hans Heger located in Bonn. The monthly costs of this undertaking roughly amounted to the equivalent of a subscription to one of the major broadsheed daily newspapers like Frankfurter Allgemeine Zeitung (FAZ) or the like.
Hence, the postman started delivering piles of printed matters, and after a short while the floor of my living room was covered with a layer of unread parliamentary papers. Later I carried all that stuff down to the cellar, and some months onwards I had to pull the emergency brake and abandon the entire project because of all empty space was sucked off by piles of Official papers, most of them unread, of course. In the end, the experiment had utterly failed.
But then, suddenly the the Internet came in and was more and more accessible by private individuals.
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The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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