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).

According to the Lisbon Treaty, the European Parliament is actively involved in the making of a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection (last known published text in Document 11328/11 dated June 23, 2011).

Furthermore, the European Parliament is invited to adopt or reject an agreement on a Unified Patent Court without being actively involved in drafting it (last known published text in Document 13751/11 dated September 02, 2011)

In November 2011, JURI Legal Affairs Committee of the European Parliament mandated three RapporteursBernhard Rapkay (S&D, Germany), Raffaele Baldassarre (EPP, Italy), Klaus-Heiner Lehne (EPP, Germany) – (see agenda, nos. 33, 34, 35) to negotiate the agreement on the Unitary Patent and the related Language Regime with the European Council in back rooms behind closed doors. (see e.g. press release as well as press reports [1] and [2]).

These back room activities apparently were successful, at least in a technical sense. An informal consensus was reached between representatives of the EU Commission, the EU Council, and EU Parliament, however which – as far as I know – has not been published yet.

In February 2012, the JURI Legal Affairs Committee of the European Parliament finalised their report on these matters but the plenary vote was postponed because of the question of where the central division of the Court shall be seated was still left unanswered in those days.

The general expectation was that the package consisting of the Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection, the Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangement and the agreement on a Unified Patent Court shall not be unbundled thereafter. Only the precise indication of the seat of the central division was envisaged to be inserted into the text of the agreement on a Unified Patent Court.

But the Heads of Government and/or State assembled at the European Council summit last week preferred to proceed differently. They obviously have unbundled the previously agreed package again not only by “suggesting” (whatever that means) 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, and, not spoken out explicitly, be re-introduced into the Court agreement. Moreover, also the rules governing the accessibility of the central division vis-a-vis the regional chambers have been altered.

A precise idea as how to implement this has already been noted down in EU Council Document 11959/12 titled Proposal for a Regulation of the European Parliament and the of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection – Approval of an amendment to the final compromise text, which however, is not accessible to the general public. Cowardly as our political elite meanwhile appears to be, they more and more get used to withhold crucial documents like this, thereby uttering flimsy excuses to the effect that they never would be able to ever reach an agreement if the contents thereof is widely known – or something similar.

But behind the scenes, clouds are gathering in the European Parliament. This week sessions will be held in Strasbourg, and just now when I am writing this posting the MEPs probably are hurrying to get to the Parliament premises there in order to be present in time when deliberations begin.

I am very much in doubt as to the European Parliament simply will swallow the pill prescribed by the European Council last week; see e.g. here and there.

For example, last Sunday MEP Jutta Steinruck wrote in her blog:


Durch das einseitige Aufkündigen des im Trilog vereinbarten Verhandlungsergebnisses ist der Rat wortbrüchig geworden. Die SPD-Abgeordneten kritisieren diese Vorgehensweise aufs Schärfste. Dadurch ist völlig offen, wie jetzt weiter verfahren wird.

I would like to offer my translation as follows (emphasis added):

Position of the SPD:

By unilaterally denouncing the results of the trilateral negotiations, the Council  acted treacherously. The MEPs from Social Democrat Party highly disapprove this procedure. Thereby it is entirely open as to how they will proceed further with this issue.

Currently the Schedule for the Plenary session from 2 to 5 July 2012 in Strasbourg says that the plenary vote on ACTA (which is expected to be voted down) as well as the plenary vote on the Unitary Patent / Unified Patent Court shall take place on Wednesday, 4 July 2012. There are rumours saying that supporters of ACTA currently are attempting certain tactics to save ACTA at least until the vote of the Court of Justice of the European Union (CJEU) by simply taking this item off the agenda. Currently there appears to be no motion visible to take the patent issue off the agenda although it must be absolutely unclear on what the plenum may vote if the basis of the previous votings of the JURI Committee does not exist any longer.

Expect surprises. Stay tuned.

[UPDATE 2012-07-02 16:55] See also an English translation of this article in French by MEP Daniel Cohn-Bendit and former French Prime Minister Michel Rocard.

[UPDATE 2012-07-02 17:15] @gibus (Mr Gérald Sédrati-Dinet) reports on Twitter that the Unitary Patent stuff has been removed from the EP Agenda for 2012-07-04. Plenary vote on ACTA shall not be postponed according to @MarietjeD66 (Marietje Schaake MEP) .

[UPDATE 2012-07-02 19:20] Postponement of Unitary Patent stuff in European Parliament is now official:

Parliament postponed its scrutiny of a draft EU patent law, in a surprise vote prompted by the Council’s last-minute wish to delete three key articles. The rapporteurs argued that this would “emasculate” the proposal. President Schulz voiced Parliament’s concern at the dismissal of Paraguay’s directly elected President Fernando Lugo and announced that it would send a delegation to investigate.

Parliament’s vote on the European patent was postponed by a vote, requested by rapporteurs Bernard Rapkay (S&D, DE), and Klaus-Heiner Lehne (EPP, DE), in response to the Council’s plan to delete three key articles on Tuesday morning, just before Parliament’s debate.

Mr Rapkay reminded MEPs that the Council had pledged on 2 December 2011 to approve the law as it then stood, provided Parliament did likewise. To change it now would be a “scandalous breach” of procedure, he said, adding that the Council’s haggling over the seat of the proposed patent court resembled an “oriental bazaar”.

Mr Lehne backed the postponement request, stressing that deleting articles 6-8 would “emasculate” the proposals. If the Council did this, he said, the case “would go straight to the European Court of Justice”.

The President noted that the Council’s request in effect rendered the first reading null and void.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

8 Responses to Stormy Weather Ahead: Unitary Patent, ACTA in European Parliament

  1. zoobab says:

    Since both ACTA and the Unipat have pending procedures before the ECJ, the EP should not make it on the agenda until those procedures has been cleared.

    • Peter Lustig says:

      I totally agree, but this may be a rather naive view. I would not be suprised to see Spain and Italy withdrawing their complaints against enhanced cooperation re the unitary patent sooner or later. Bear in mind the Euro crisis and expect some sort of “political” quid pro quo deal along the lines “We assist you if you stop your opposition”.

  2. Tim Roberts says:

    “.. the Heads of Government …preferred to proceed differently. They obviously have unbundled the previously agreed package…”
    As has been said before, the ‘package’ had *not* been agreed – despite repeated assertions that it had been. Agreement is not reached by constantly reiterating that agreement has been reached.

  3. @Tim Roberts

    Well, I thought that in December 2011 the EU Council had reached informal conclusions except concerning the seat of the central division. This result was then modified / informally approved by the trilateral back-room dealing by Commission, Council and JURI.

    So, my picture was that if the European Summit had just decided, say, the seat of the central division goes to Paris, and nothing else … then I would have expected the entire thing nodded through by EUPARL later this week.

    Do you think there never was something like an *informally* agreed set of texts?

  4. BBear says:

    Interestingly, the referenced page in the Blog of MEP Jutta Steinruck with the commentary re the Council acting treacherously has meanwhile been deleted! No more reference at all to the outcome of the summit.

  5. BBear says:

    Sorry, false alarm. The link in your post is missing an “l” alt the end (

  6. [...] know from the latest available draft text of the Unitary Patent Regulation dated 23 June 2011 (see here and [...]