EU: Unitary Patent: State Of Play, What Next?

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:

“On Monday November 19, the Member States participating in the enhanced cooperation reached unanimous agreement on the Unitary Patent Package at the meeting of the Committee of Permanent Representatives (Coreper I). Later in the same evening, an extraordinary meeting of the Committee on Legal Affairs of the European Parliament (JURI), took place in Strasbourg where MEPs expressed overwhelming support for the proposal agreed by Member States. Given these positive developments, there is wide spread optimism that the first European unitary patent could be introduced early 2014.

The agreement reached within Coreper and JURI yesterday was based on a shared wish to boost the global competitiveness of the EU innovation industry and to demonstrate the capacity to deliver instruments at the European level which can play a decisive role in helping the European economy especially in times of economic crisis. The effect of the final adoption of the unitary patent package would mean a unitary patent title common to EU Member States less expensive and simpler. The new system ensures more efficient patent protection for businesses, especially Small and Medium-sized Enterprises (SMEs), in the EU.

[...]

Positive signals from Parliament
Following the endorsement of the Patents Package by Coreper, the JURI-committee discussed the state of play of the unitary patent at an extraordinary meeting that took place in Strasbourg last night. At this meeting, Mr. George Zodiates, Chair of Coreper I, presented the Council compromise proposal for a new Article – Article 5 in the Regulation of Unitary Patent Protection, where the patent holder has the right to prevent third parties from acts against which the patent provides protection. The aforesaid protection is ensured throughout the territories of the Member States. At the same time in order to have homogeneous patent case law, deleted Articles 6-8 have been moved to the Unified Patent Court Agreement (part of the patents package).

The majority of speakers expressed overwhelming support for the proposal. The three rapporteurs Mr. Bernhard Rapkay (S&D, DE), Mr. Klaus-Henier Lehne (EPP, DE) and Raffaele Baldassarre (EPP, IT) expressed their support for the Council proposal and considered that the Parliament’s “red lines” (compatibility of the proposal with Article 118 of the Treaty, respect for the role of the Court of Justice and of the Parliament) had been respected. European Commissioner for Internal Market and Services, Mr. Michel Barnier, also supported the compromise and appealed for 35 years of negotiation to be brought to a close.

According to the JURI Chair Mr. Lehne, the European Parliament would need to check the final text of the package before it could move to a formal endorsement. Since the agreement is due to be adopted by the Competitiveness Council on December 10, the EP could vote on the Regulations – subject to any amendments from the political groups at its December plenary session.”

According to a leak published on pinpact.com, the amendment as mentioned in the press release reads like this (no official confirmation available):

Article 5 (new) – Uniform Protection

(1) The European patent with unitary effect shall confer on its proprietor the right to prevent any third party from committing acts against which the patent provides protection throughout the territories of the participating Member States in which the patent has unitary effect, subject to applicable limitations.

(2) The scope of this right and its limitations shall be uniform in all participating Member States in which the patent has unitary effect.

(3) The acts against which the patent provides protection referred to in paragraph 1 and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the participating Member State whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 10.

(4) In the report referred to in Article 20(1) the Commission shall evaluate the functioning of the applicable limitations and, where necessary, shall make appropriate proposals.

Recital 9 – The European patent with unitary effect should confer on its proprietor the right to prevent any third party from committing acts against which the patent provides protection. This should be ensured through the establishment of a Unified Patent Court. In matters not covered by this Regulation or Council Regulation …/…( translation arrangements) the European Patent Convention, the Agreement on a Unified Patent Court, including its provisions defining the scope of the right and its limitations, and national law including rules of private international law shall apply.

Recital 10 – In the report referred to in Article 20(1) of this regulation the Commission shall evaluate the functioning of the applicable limitations and, where necessary, shall make appropriate proposals, taking account of the contribution of the patent system to innovation and technological progress, the legitimate interests of third parties or overriding interests of society. The Agreement on a Unified Patent Court does not preclude the European Union from exercising its powers in this field.

As far as we can trace this matter on the basis of published Documents, these amendments should apply to Document 11328/11 – Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent
protection – dated June 23, 2011.

Article 10 of the Draft mentiones some rules concerning treating a European patent with unitary effect as an object of property. Under these circumstances, national law of EU Member States comes into play. However, Sec. 3 of the leaked amendment as quoted above reads as if the scope of protection conferred by a Unitary Patent is to be determined in accordance with certain national law. This sounds extremely odd; see also this posting on the IPKat Blog: “Why has no-one appreciated the risk of fragmentation which prima facie seems monstrous?”