Reports are coming in saying that the European Council summit indeed has reached an agreement on the project of creating a EU Unified Patent plus a corresponding court system, namely a EU Unified Patent Court.

In this context, EU of course merely means enhanced co-operation, i.e.full EU minus Italy and Spain, the governments of which have opted out earlier due to their unwillingness to accept a language compromise reached by a large majority (see here and there). And, Italy and Spain have challenged the validity of the application of the enhanced co-operation procedure with regard to the Unitary Patent before the Court of Justice of the EU; see cases C-274/11 (Kingdom of Spain against Council of the European Union) and C-295/11 (Italy against Council of the European Union), respectively, which are still pending.

In January 2012 it looked as if most or all of the issues related to a political package comprising a EU Regulation creating a EU Unitary Patent, a EU Unified Patent court and a corresponding language regime are basically solved except, well, except the question of where the central division of the new Court shall be seated.

Earlier today, reports were emerging that a compromise proposal fostered by the President of the European Council, Mr Herman Van Rompuy, on the disputed location of the central division of the planned Unified Patent Court (envisaging that all contenders Paris, London and Munich would get their share) was about to falter:

Obviously eurosceptic backbenchers in Mr Cameron’s own Tory Parliamentary Group were determined to cause trouble threatening to harm some of the further prospects of his political career if he would nod through a loophole for the Court of Justice of the EU to step into the field of substantive patent law. The point is that the present Draft for a EU Regulation creating the Unitary Patent comprises, in its Articles 6 to 8, a legal defintion of the effects of such a patent. The Regulation is subject to CJEU jurisdiction, and, hence, a bunch of eurosceptics in the UK, supported by some advocates of Industries also not very much liking prospects of CJEU judgement in patent matters, balked.

Toady in the morning hours it looked as if the entire patent package was bound to fail again because of there was no sign that Mr Hollande and Ms Merkel  might be willing to re-enter into any debate of the technicalities of the package already broadly agreed upon in December 2011.

However, things turned again. In Document EUCO 76/12 titled EUROPEAN COUNCIL 28/29 JUNE 2012 CONCLUSIONS we now can read:

Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.

Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).

Concerning actions to be brought to the central division, it was agreed that parties will have the choice to bring an infringement action before the central division if the defendant is domiciled outside the European Union. Furthermore if a revocation action is already pending before the central division the patent holder should have the possibility to bring an infringement action to the central division. There will be no possibility for the defendant to request a transfer of an infringement case from a local division to the central division if the defendant is domiciled within the European Union.

We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.

This obviously means:

  • The French will take the liberty to nominate the first President of the new Court.
  • The entire concept of the envisaged Unified Patent Court is based on a delicate balance between local chambers and the central division. Now, the role of the central division has been strengthened vis-a-vis previous Drafts insofar now plaintiffs to proceedings before the Court now have an explicit option to go straight to the central division of the defendant is seated outside the EU.
  • Those critics demanding shifting Articles 6 to 8 from the EU Regulation to the Court Agreement have won.

Although it appears to be a good thing that finally the EU Unitary Patent has been agreed upon, a bitter aftertaste remains. At first, the breakthrough obtained today clearly is a defeat at the expense of the very core of the institutional structure of the European Union as we know it today. It is an open declaration of deep mistrust, if not political warfare, against the Court of Justice of the EU. Of course, there may be reasons for being dissatisfied with the past and current practice of the Court. But a normal and sane reaction would be to demand reforms of the Court, not blunt attempts to cut it out of business.

The legal validity of today’s compromise will sooner or later be challenged and finally be decided by the Court of Justice of the EU in the light of its previous decision A 01/09.

And, as a second point, the solution is typical for the way of finding a compromise in the EU: Not the merits of a solution count but face-saving. Time will tell if this model of a distributed Court really can work.

[UPDATE 2012-06-29 17:05] See also this statement from Commissioner Barnier.

[UPDATE 2012-07-01 11:30] See also Toby Helm, political editor of, in his article David Cameron pledges referendum if EU demands more powers:

[...] Some 100 Conservative MPs wrote a letter to Cameron last week demanding a referendum on Britain’s relationship with the EU to be held in future years. Cameron argues that an in or out referendum is not the right choice now because the “vast majority of the British people” want changes to the current relationship with the EU, rather than to leave outright. [...]

Well, “Some 100 Conservative MPs” amount to a threat of a  potential backbencher’s revolt having the power even to topple a PM. Maybe this letter was the background for Cameron’s last minute move to cancel Articles 6 to 8 in the Draft Regulation.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

12 Responses to BREAKING: Agreement On EU Unitary Patent Reached

  1. Gibus says:

    It has to be reminded that removing Articles 6-8 from the regulation has been judged to not complyu with the treaties by the legal service of the Commission , or by academics, and even the UK European Scrutiny Committee.

    Moreover, changing the regulation means that there is no more agreement with the European Parliament…

  2. zoobab says:

    Patent law can now operate in a complete vacuum.

  3. JH says:

    As the document says, the Council can only “suggest” to the EP that Arts 6-8 be removed.

    The EP can — and very likely will — say no.

    If the EP insists on Arts 6-8 (on which it would be entirely likely to have the backing of some member states and some commissioners), are the Council really likely to stand up to it?

    • @JH

      Well, yes … in principle …

      But next week or so EP most probably will stick their neck out and kill ACTA.

      Will they really have that stamina to do it again and kill UPC Agreement / Unity Patent Regulation against the explicit vote of the Heads of Government or State as expressed today on the European Council Summit?

      I doubt.

      • Gibus says:

        Nevertheless the rapporteur Rapkay and JURI chairman Lehne, have been very clear that removing articles 6-8 would not comply with EU treaties.

        So either they change their opinion from 180°, ever there will be a second reading…

  4. [...] Axel Horns hat eine erste Bewertung. Er meint, dass diese Entscheidung wohl letztendlich vor dem EuGH landen muss. Besser wäre es, [...]

  5. JH says:


    The EP aren’t going to kill it. They are (in my view) most likely to pass it, with Arts 6-8 retained intact.

    The question then will be whether the Council kill it (or spend several months playing ping pong). For the reasons I set out above, I doubt that will happen.

    The EP has a long history of going eyeball-to-eyeball with the Council on questions of full European competence vs intergovernmental competence. Every power that the EP now has, has ultimately come out of that long fight. It’s part of the EP’s institutional identity. (And in this case, it’s also the firm conclusion of the EP’s legal advice).

    So I don’t expect the EP to back down; especially given the perception that this is a single rogue member state theatrically pandering to the excessive fears of its eurosceptic lunatic fringe about the established European institutions.

    And if the EP holds its ground, I also don’t expect that ultimately that single member state, which has already been cut a very sweet deal, will bring the agreement down over it.

  6. [...] Axel Horns hat eine erste Bewertung. Er meint, dass diese Entscheidung wohl letztendlich vor dem EuGH landen muss. Besser wäre es, [...]

  7. Rebentisch says:

    The problem is that it’s the same as with the EURO. You have to get the design right from the start. You cannot build something and then muddle through. The EU, i.e. Barnier should start with harmonising the uncontroversial basics of substantive patent law, then prior art and administrative procedures in patents. You have to build a community patent from the ground up. Growing it from the ground.

    The proposed court reads like a pathologic statement about the state of patent affairs, a court to keep the legislator out, an EU court with no EU powers. They wasted 50 years and are tired but the politicians fail to face the obstructive forces, confront and openly analyse the underlying interests. You saw them fail again and again, but they didn’t openly speak about the obstructive interests. These obstructive forces are not the critics of an application of the patent instrument to certain fields, the obstructionists are those who don’t want to get it right. Does not make sense to get a “false” court for them.

  8. [...] reported, last week’s European Council summit has reached an agreement on the EU Unified Patent and a [...]

  9. [...] As we had reported earlier, the European Council summit last week held in Brussels reached a compromise on long-debated plans to create an enhanced co-operation amongst EU Member States minus Italy and Spain aiming at creating a Unitary Patent plus a corresponding Unitfied Patent Court (UPC). [...]

  10. [...] reported here and elsewhere [1, 2, 3], the European Council agreed on the EU Unitary Patent and a EU Unified [...]