From the monthly archives: November 2012
According to the closing note at the very end of the text of the Draft agreement on a Unified Patent Court (Document 16222/12 [2012-11-14]), indication is given that the Agreement is scheduled to be signed on February 18, 2013 in Brussels. After that date, a rush to the respective national Parliaments of all of the participating Member States is attributed top priority on the agendas of the Governments; c.f. Document 16221/12 [2012-11-14] Updated draft declaration of the contracting Member States concerning the preparations for the coming into operation of the UPC agreement.
Article 59 Para. 1 of the Agreement stipulates:
Article 59
Entry into force(1) This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 58a, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EC) 44/2001 concerning its relationship with this Agreement, whichever is the latest.
Well, what would happen if the quorum of 13 ratifications including Germany, United Kingdom and France (i.e. the three Member States in which the highest number of European patents) is not reached in some foreseeable future due to some political misfortune? Take, for example, a purely fictional case where the United Kingdom instead of timely ratifying the Agreement holds a referendum resulting in a margin of votes in favour of leaving the EU at all (note also this and that).
In such case the Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection (Document 11328/11 [2011-06-23]) provides a matching clause in Aricle 22 Para. 2:
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As already reported (here and there), up to now the EU has not published the compromise proposal which was subject-matter of the discussion in JURI last Monday. The only source available to the general public appeared to be a leak originally published on the website of Pinpact.com. They simply have put a PNG graphics file on their server showing a single page comprising the wording of Article 5a (new) as well as Recitals 9 and 10 in the style on a non-paper, i.e. without any Official headings etc..
Just today, the law firm of Bardehle Pagenberg has published another version of that document comprising 3 pages in total. On page 2 thereof we find an explanation which is, in my understanding, not from Bardehle Pagenberg but from the original Cyprus non-paper. The following paragraphs might therefore shed some light on the logic behind this proposal:
- The proposed new Article 5a of the UPP Regulation is based on the assumption that it would seem sufficient that the UPP Regulation itself provides for the right of the patent proprietor to prevent third parties from committing acts against which the patent provides protection. These acts cover both the direct and the indirect use of the patented invention by a third party (as initially spelled out in more detail in the former Articles 6 and 7 of the UPP Regulation). The right of the patent proprietor to prevent third parties from such acts is subject to applicable limitations (as initially spelled out in former Article 8 of the UPP Regulation). The details of this right and its limitations are now determined pursuant to new Article 5a(3) of the UPP Regulation – by reference to the national law of the Member State applicable under Article 10 of the UPP Regulation of which Articles 14f to 14i of the UPC Agreement (as now amended to apply also to European patents with unitary effect, see in more detail point 3 below) are an integral part.
- The UPP Regulation furthermore stipulates in new Article 5a(2) that the right to prevent third parties from infringing the patent and the limitations to this right shall be uniform in all participating Member States in order to satisfy the requirement of the Regulation’s legal basis, i.e. Article 118(1) TFEU which provides for the establishment of uniform protection. This means that participating Member States are prevented from adopting in their national law provisions which would undermine the uniformity of protection.
- Pursuant to new Article 5a(3) UPP Regulation, uniformity of protection will be achieved by the reference to the law of the participating Member State whose law is applicable to the European patent with unitary effect as an object of property pursuant to Article 10 UPP Regulation. Implicitly this refers to Articles 14f to 14i of the UPC Agreement, which correspond to the former Articles 6 to 8 of the UPP Regulation and which define the scope of the right of the proprietor, its limitations and prior user rights. Articles 14f to 14i of the UPC Agreement which previously applied only to ”classical” European bundle patents have now been amended so that they now apply also to European patents with unitary effect. These Articles defining the scope of the right, its limitations and prior use rights will form an integral part of the national law of each participating Member State in which the UPC Agreement will come into force and for which the European patent with unitary effect will become operational.
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A number of EU Council Documents relevant with regard to the Unitary Patent / Unified Patent Court have recently been published:
- Document 16222/12 [2012-11-14] Draft agreement on a Unified Patent Court and draft Statute – Consolidated text. Prepared by Cyprus EU Presidency.
- Document 16221/12 [2012-11-14] Updated draft declaration of the contracting Member States concerning the preparations for the coming into operation of the UPC agreement. Prepared by Cyprus EU Presidency.
- Document 18855/11 [2012-11-13] COMMON GUIDELINES Consultation deadline for Croatia: 23.11.2012
- Document 15765/12 [2012-11-05] Corrigendum to Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection.
- Document 14750/12 [2012-10-12] Draft agreement on a Unified Patent Court and draft Statute – Consolidated text. Prepared by Cyprus EU Presidency.
Especially Document 16222/12 appears to be of particular interest today; it reflects the shift of provisions of substantial patent law from the Draft Regulation into the Unified Court Agreement.
Concerning professional representation of parties by European Patent Attorneys, the state of play appears to be as follows:
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Yesterday I reported that after COREPER had approved some non-disclosed proposal to break the political deadlock concerning the pending Draft for a Regulation creating a European Patent with Unitary Effect, at 7pm JURI – the Legal Affairs Committee of the European Parliament – was rushed into an extraordinary session dealing only with this topic.
Up to now there was silence on what might have emergend from those JURI deliberations.
Only just now the Cyprus EU Presidency came out with a fresh press release:
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Well, according to the calender, summer has passed already months ago. But on the European political stage politicians playing the (never-ending?) saga of the EU Patent (European Patent with Unitary Effect, to be more precise), the summer recess apparently has closed just today.
In our last posting dated July 10, 2012, we reported that the compromise reached June 29, 2012 on the European Council summit held in Brussels had not been received by the Committee of the European Parliament (JURI) well. The point was that Prime Minister David Cameron, on behalf of Her Majesty’s Government in London, had pushed through his demand that some Articles 6 to 8 of the planned EU Regulation creating a European Patent with Unitary Effect are to be deleted from the final text. Those text portions comprised legal definitions of substantial patent law, and obviously pressed by a bunch of eurosceptic backbenchers in his own party there might have been some urgency to make the world believe that the unloved Court of Justice of the European Union could be kept at bay from mingling with patent matters by such kind of last-minute amendment.
However, JURI took this decision of the Heads of Government and/or Heads of State as sort of a scandal and refused to give consent. If the plenary of the European Parliament had followed, the Unitary Patent (once more) would have been dead on arrival.
Rumours are going around since weeks that the Cyprus EU Presidency is working hard behind the scenes to help overcoming this deadlock but no details were published. Last weekend, tweets emerged suggesting that JURI might be rushed into an extraordinary session just tonight, November 19, 2012, 19:00 hours, to vote on a proposal already finalised by COREPER.
I have not yet seen any official documents but on the net there a paper is circulating showing a new Article 5 as reported by Pinpact.com. Some British folks are still unhappy.
Stay tuned. More news will come up soon.
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