EU Unitary Patent / Unified Patent Court: The Final Showdown Is Nigh

Recently Document 10059/12 originating from the Danish EU Presidency and dated May 24, 2012, has been released to the public. It is titled Draft Agreement on the creation of a Unified Patent Court – Suggested way forward for a political agreement and addresses Permanent Representatives Committee (Part 1) / Counci (COREPER1). The Document re-iterates that, according to the Danish Presidency, the creation of unitary patent protection and the Unified Patent Court are key drivers for strengthening economic growth and job-creation in the European Union and cornerstones in building a strong science base in Europe.

Again according to that Document, on December 05, 2011, the Competitiveness Council had an exchange of views on the last outstanding issues regarding the creation of a Unified Patent Court based on Document 18239/11. At the end of those discussions, and while keeping in mind that nothing is agreed until everything is agreed, delegations had reached a general agreement on all but one outstanding issue, namely the place where the seat of the Central Division of the Court of First Instance will be situated.

No substantial portions of Document 18239/11 have been released yet; the heavily redacted published version only discloses some points of interest as follows:

• Renewal fees
• The financial contribution of the Member States hosting a local division, a regional division, the central division of the Court of 1st Instance or the Court of Appeal
• Other financial contributions of the Member States
• Court’s fees
• Language of proceedings
• Actions to be brought to the central division
• Transitional period
• Revision clause
• Number of ratifications required for the entry into force
• Breeders’ privilege
• Local divisions
• The seat of Central Division of the Court of 1st Instance, the seat of the Court of Appeal with the Registry and the seat of the Patent Mediation and Arbitration Centre

You will note that apparently the issue of the rights of European Patent Attorneys to represent their Clients is not mentioned on this list.

Now back to Document 10059/12. This text further discloses that at an informal meeting of the members of the European Council on January 30, 2012, the participating Member States (i.e. all EU Member States except ES, IT) stated their commitment towards reaching a final agreement on the European patent reform at the latest in June 2012. This commitment was confirmed by the European Council on March 01-02, 2012, and by the members of the European Council on May 23, 2012. Based on the common understanding that the texts of the draft Agreement on a Unified Patent Court and of the draft Statute of that Court have been thoroughly discussed under the Polish Presidency, the Danish Presidency is reported to have undertaken intensive consultations, aimed at reaching a compromise on the last outstanding issue concerning the seat of the Central Division. As a follow up on these consultations, the Danish Presidency invited the delegations of the participating EU Member States to discuss the location of the seat of the Central Division of the Court of First Instance with a view to reaching a political agreement.

Finally, reference is made to the fact according to which the Competitiveness Council on December 05, 2011, the participating Member States reached general agreement on a draft declaration of the contracting Member States concerning the preparation for the coming into operation of the Unified Patent Court, as contained in Document 17580/11 (Document again heavily redacted, little substantial disclosure). In response to several Member States having expressed the need for further clarification on the process following a political agreement on the patent package, the Danish Presidency now circulates a draft statement originating from the Danish Presidency but apparently also supported by the incoming Cypriot Presidency on the process following such a political agreement, as set out below:

Joint Statement from the Danish Presidency and the (incoming) Cypriot Presidency

Following a final agreement on the Unified Patent Court at the Competitiveness Council on the 30th of May 2012, the Presidency will immediately contact the European Parliament with the aim of having a vote on the three reports regarding the European Patent reform as soon as possible (the 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, 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 and the report on the jurisdictional system for patent disputes).

Once the voting in the European Parliament has been completed, the Regulations on the Unitary Patent Protection (UPP) and the applicable translation arrangements should be adopted by the Council, preferably in July 2012. In parallel, the Presidency will work with the Commission on incorporating the agreed changes to the Agreement on the Unified Patent Court, facilitate a finalisation of the text with the Member States in the Council and the Commission and work with the Commission on carrying through lawyer-linguist review.

Following a final agreement on the Unified Patent Court, the Presidency will immediately contact the Commission with the aim of having a draft of the Rules of Procedure on the Unified Patent Court submitted to a broad public consultation already in the beginning of June 2012. A draft, as consolidated by the Commission following the public consultation, should be presented to the participating Member States and initially discussed by the Member States in the Council before the signature of the agreement.

Before the end of October 2012, a Diplomatic Conference should be held with the purpose of enabling the participating Member States to sign the Agreement on a Unified Patent Court.

Immediately after the signing of the Agreement, the ratification process by national parliaments should start and the Preparatory Committee should be constituted. By the end of 2012, the PreSelect Committee of the Administrative Council of the European Patent Organisation should be constituted (UPP Regulation).

The Preparatory Committee should, among other things, draw up a complete and detailed set of Rules of Procedure, based on the draft from the Commission and the work done by the Member States in the Council. The Rules of Procedure should be discussed thoroughly in the Committee, to secure that all stakeholders has been heard and that the rules are broadly anchored in the participating Member States. The uniform application of the Rules of Procedure are vital to guarantee that the decisions of the Court are of the highest quality and to ensure legal certainty and that proceedings are organised in the most efficient and cost effective manner. The Preparatory Committee should have a final draft of the Rules of Procedure ready before the end of the ratification period, with the aim of having the Rules of Procedure adopted by the Administrative Committee shortly after its establishment.

By November 2013, at least 13 participating Member States should have ratified the Agreement on a Unitary Patent Court in order for the Agreement to enter into force on the 1st of February 2014, subject to the necessary amendments to the Brussels I Regulation being in place.

The Regulation on Unitary Patent Protection and the Regulation on the applicable translation arrangements should apply on the date of entry into force of the Agreement on a Unified Patent.

During the period from February to April 2014, all necessary decisions should be adopted regarding the Administrative Committee, Budget Committee, budget, appointment of judges and president, recruitment of staff, and host countries should provide facilities. On the 1st of April 2014 the system should be ready for the first registration of a European patent with unitary effect.

As we all know, the 3169th Council meeting of the EU Council in Competitiveness configuration (Internal Market, Industry, Research and Space) was held in Brussels, chaired on May 30, 2012, by Mr Ole Sohn, Minister for Business and Growth of Denmark, but again failed to reach any political agreement on the seat of the Central Division of the Court. Instead the issue was referred to the the European Council at its meeting on June 28 and 29, 2012. However, it looks as if all the other points mentioned in the Joint Statement might well be pushed through after a final breakthrough on the European Council (if, but of course only if, this breakthrough actually happens). This appears to hold in particulat for the voting in the European Parliament as well as for starting a public consultation concerning the Rules of Procedure on the Unified Patent Court.

Concerning the state of JURI draft reports see also here, here and there.

Just today Roddy Thomson from AFP is reporting that at next COREPER meeting on June 19, 2012, EU president Herman Van Rompuy might table a final proposal in preparation for the European Summit to be held at the end of this month.

The game still is thrilling. Stay tuned.