With Document 7265/13 dated March 08, 2013, the Irish EU Presidency has published some information concerning setting up of the Preparatory Committee in the context of the Agreement on a Unified Patent Court. A meeting of the Friends of the Presidency group (Patents; see Document CM 1560/13) was convened on February 27, 2013, with the objective of both hearing and considering delegations’ views on how this Preparatory Committee could be organised. According to the recently published Document, a clear consensus emerged from the Signatory States endorsing a non-paper circulated by The Netherlands and Sweden, including the proposal that the work be driven by the Member States, and thus outside the framework of existing institutional structures. In this latter respect, a number of Signatory States offered to put their resources – human and/or logistical – at the service of the Preparatory Committee once it begins its work. The European Commission offered its expertise, as and when requested by the Preparatory Committee.
Now, the Permanent Representatives Committee (COREPER) is invited to take note:
- of the agreed position of the Signatory States regarding the Preparatory Committee of the Agreement on a Unified Patent Court, as set out in the paper contained in the Annex to Document 7265/13 and in the cover note thereof;
- of the intention of the Presidency to convene the inaugural meeting of the Preparatory Committee on 26 March 2013 in Brussels; and
- that Council, at the appropriate level, will be kept informed of progress of the work of the Preparatory Committee when needed.
A list of four main tasks to be elaborated in groups with project teams can be identified:
- Legal framework,
- Financial aspects,
- IT & Facilities, and
- Human resources & Training.
Today, on February 19, 2013 at 1415h, the signing ceremony of the International Agreement on the establishment of the Unified Patent Court
will take has taken place in the Justus Lipsius building of the Council of the European Union located in Brussels.
The event can be followed by video streaming:
As far as we know, 22 countries are today going to sign the Agreement (in brackets: year of accession to EU or predecessor organisations):
- Austria (1995),
- Belgium (1952),
- Cyprus (2004),
- Denmark (1973),
- Estonia (2004),
- Finland (1995),
- France (1952),
- Germany (1952),
- Greece (1981),
- Hungary (2004),
- Ireland (1973),
- Italy (1952),
- Latvia (2004),
- Lithuania (2004),
- Luxembourg (1952),
- Malta (2004),
- Netherlands (1952),
- Portugal (1986),
- Romania (2007),
- Slovakia (2004),
- Sweden (1995), and
- United Kingdom (1973)
Bulgaria (2007),(see UPDATE below) the Czech Republic (2004), (see UPDATE below)
- Poland (2004) and
Slovenia (2004)(see UPDATE below)
have indicated that they would not be in a position to sign the agreement next week because they still had technical issues to resolve. They are expected to sign at a later date.
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While nowadays most of the initial filings with the European Patent Office (EPO) or with the Office for Harmonisation in the Internal Market (OHIM) are made via electronic means, a lot of other communication between the respective Office and the applicants or their representatives usually still is dealt with by paper-based means. For example, the EPO sends an awful amount of registered letters every day, and the OHIM mainly uses telefax for sending out Official communications and for receiving responses thereto.
In this context it should be noted that the new Unified Patent Court will be the first major European institution in the field of IP which adopts a policy solely allowing electronic communication, effectively banning all paper-based backdoors. Article 44 of the Agreement on a Unified Patent Court stipulates:
The Court shall make best use of electronic procedures, such as the electronic filing of submissions of the parties and stating of evidence in electronic form, as well as video conferencing, in accordance with the Rules of Procedure.
In the 14th Preliminary set of provisions for the Rules of procedure of the Unified Patent Court this matter is picked up by Rule 4, reading as follows:
Rule 4 – Lodging of documents
Written pleadings and other documents shall be lodged at the Registry in electronic form. Parties shall make use of the offcial forms available on-line.
“Written pleadings and other documents shall be lodged at the Registry in electronic form” – no exceptions allowed. At first we note that the internal competence for dealing with filings appears to lie with the Registry of the Court. As a second point, there will be “offcial forms” for each and every potential filing which must be usted and, after being filled in, filed electronically.
Moreover, throughout the full text of the Draft Rules of Procedure there are 25 mentions of “electronic address” of the Court and/or parties involved.
Neither those above-mentioned “official forms” nor the “electronic addresses” are explained in any technical detail within the Draft of the Rules of Procedure.
Closely related to these on-line issues are telephone and video conferences as indicated in Rule 105. There is no Rule defining applicable technologies for such purposes.
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A few days ago, the 14th Draft of the preliminary set of provisions for the Rules of procedure of the Unified Patent Court dated January 31st, 2013, has appeared on the Internet. This means that now all main components of the new EU Unitary Patent & Unified Patent Court system are either final or at least available in a quite recent draft version. The text comprises 382 Rules and covers a wide range of procedural law to be applied in cases before the new court, including:
- Application and interpretation of the Rules of Procedure,
- Procedures before the Court of First Instance,
- Provisional Measures,
- Procedures before the Court of Appeal,
- General provisions,
- Fees and legal aid.
This is just a brief note that the final text of the Agreement on a Unified Patent Court has just been published today. It is available in Document 16351/12 via the Document server of the Council of the European Union.
Hard-coded in Article 84 (1) is a provision setting the date on which the Agreement open for signature by any Member State to
February 19, 2013.
The Regulation (EU) No 1257/2012 of the European Parliament and of the Council December 17, 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection has already been published in the Official Journal of the EU Number L 361/1 dated December 31, 2012.
The Regulation (EU) No 1260/2012 of the European Parliament and of the Council December 17, 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements has already been published in the Official Journal of the EU Number L 361/89 dated December 31, 2012.
On January 10, 2013, the Council of the Europeran Union has published Document 5129/13 titled Proposal for a regulation of the European Parliament and of the Council concerning customs enforcement of intellectual property rights.
This Draft Regulation sets out the conditions and procedures for action by the customs authorities where goods suspected of infringing an intellectual property right are, or should have been, according to Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, subject to customs supervision or customs control within the customs territory of the Union, particularly goods in the following situations:
(a) when declared for release for free circulation, export or re-export in accordance with Articles 79 to 83, 161 to 162 and 182 of Regulation (EEC) No 2913/92;
(b) when entering or leaving the customs territory of the Union in accordance with Articles 37, 38 and 183 of Regulation (EEC) No 2913/92;
(c) when placed under a suspensive procedure or in a free zone or free warehouse in accordance with Articles 84, paragraph 1 a), and 166 of Regulation (EEC) No 2913/92.
The Council of the European Union had requested, in its Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-piracy plan, that Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights, be reviewed. The text now available with Document 5129/13 represents a milestone after some time of secret deliberations; see my earlier postings here, here, and there.
The present text of the Draft Regulation appears not to provide provisions especially aiming at digital goods in general or concerning the Internet. Maybe the EU Member states have learnt their lessons from the ACTA debacle.
I know that I am a little bit late with this particular piece of information but nevertheless I think that the new policy of the Administrative Council (AC) of the European Patent Organisation (EPOorg) to publish (some? most?) of their Official Documents is worth to be disseminated widely.
In a move towards greater transparency, the European Patent Office is improving the access to the documents of the Administrative Council of the European Patent Organisation. Under this new policy, all public documents of the Administrative Council will be made available after each session and published on the EPO’s website. The documents of the October 2012 session are already accessible.
The Administrative Council is the European Patent Organisation’s governing body. Made up of delegations from the Organisation’s 38 Member States, it is responsible for mainly supervising the activities of the European Patent Office, the executive body of the Organisation.
It appears that non-public Documents are not only not published but also not mentioned on the website at all. It is not known to me which criteria are applied internally to identify public and non-public Council Documents.
The Administrative Council is one of the two organs of the European Patent Organisation, the other being the European Patent Office. The Council acts as the Office’s supervisory body and is composed of the representatives of the EPO member states.
Present Documents include (inter alia):
- CA/D 17/12 Decision of the Administrative Council of 11 December 2012 on payment of a collective reward to staff of the European Patent Office in active service during 2011 (Payment of EUR 4000,– for for each full-time EPO staff member)
- CA/98/12 Rev. 1 Collective reward for EPO staff
- CA/106/12 SPLH – Exchange of views on the documents produced by the Tegernsee Experts Group (study on grace period, study on 18-month-publication, treatment of conflicting applications, study on prior user rights, next steps within the Tegensee Process, recommendation for publication)
The language regime as intended for the European Unitary Patent is described in the Draft Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (I take the latest known version from Document 18855/2/11 dated December 12, 2012). In Recital 11 thereof we read:
In order to promote the availability of patent information and the dissemination of technological knowledge, machine translations of patent applications and specifications into all official languages of the Union should be available as soon as possible. Machine translations are being developed by the EPO and are a very important tool in seeking to improve access to patent information and to widely disseminate technological knowledge. The timely availability of high quality machine translations of European patent applications and specifications into all official languages of the Union would benefit all users of the European patent system. Machine translations are a key feature of European Union policy. Such machine translations should serve for information purposes only and should not have any legal effect
This apperars to be, well, courageous not only because of such advanced technology is not available today but also because of it is not clear if it can be achieved anyway in any foreseeable future. Meanwhile, an interim language regime is to be created as described in Recital 12:
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While in the European Parliament the plenary debate on the Unitary Patent Package is going on, Mr Yves Bot, Attorney General in charge of joint cases C‑274/11 and C‑295/11 pending before the Court of Justice of the European Union, has delivered his opinion: In Italian and a few not-so-common languages. However, Google might be your friend in such situations:
IV – Conclusion
163. In the light of all the foregoing considerations, I propose that the Court should:
1) dismiss the appeal;
2) order the Kingdom of Spain (Case C-274/11) and the Italian Republic (Case C-295/11) to take charge of their own costs and the Council of the European Union and the interveners to bear their own costs .
Just to remind you: Both cases have been filed by Italy and Spain, respectively, in order to challenge the decision of the EU Council to allow the instrument of enhanced co-operation provided by the Lisbon Treaty (under certain conditions disputed in the lawsuit). But Mr Bot’s Opinion is not necessarily the last word on that matter: First, the Court is free to depart from Mr Bot’s Opinion, second, at some later point in time a case might be filed allowing CJEU to have their say as to whether or not the Unitary Patent package as debated in the Parliament just this minute is compatible with EU treaties or not.
[UPDATE 2012-12-11 11:05] Meanwhile also translations in many other languages are available on-line, e.g. in English
[UPDATE 2012-12-11 13:25] Just an hour or so ago, the European Parliament has approved the Unitary Patent package:
The Rapkay report was approved by 484 votes to 164 with 35 abstentions.
The Baldassarre resolution was approved by 481 votes to 152 with 49 abstentions.
The Lehne report was approved by 483 votes to 161, with 38 abstentions.
Procedures: Co-decision (Ordinary Legislative Procedure) 1st reading (unitary patent), Consultation (language regime), non-legislative resolution (unified patent court)
Press conference: Tuesday, 11 December at 15:00
There is a domestic debate in the United Kingdom which currently is getting increasingly more and more fierce: Could this country, after a bitter row between supporters of the EU membership, on the one hand, and their adversaries, furious eurosceptics, on the other hand, eventually push the panic switch to trigger the ejector seat, thereby cancelling all the treaties governing their membership in this club? The recent issue of The Economist even brings this matter even on the front page. I myself, being a German citizen, tend to consider any exit of the United Kingdom from the EU as a regrettable and detrimental step harmful both for the prospects of the Kingdom as well as for the remaining EU Member States. It reduces the weight of both parties, in terms of political influence as well as concerning prospects of economic well-being. And, on the long term, European integration was and still is the central political tool for keeping peace in Europe despite a violent past.
In his time, facing a deadly threat by Nazi Germany, Churchill was right when uttering
“For 400 years the British policy has been to oppose the strongest power in Europe by uniting all the lesser powers against it. Sometimes it’s Spain, sometimes it’s Germany, sometimes France.” (Churchill: The Wilderness Years)
Those amongst the readers of this blog who have consumed episodes of the Yes Minister sitcom in the 1980s might have laughed at Bernhard Wooley’s joke stretching the scope of this piece of Churchill’s wisdom to be sort of a first principle of the UK membership in the EU. But can this really still be a valid device for today’s politics? I’m in doubt about such assumption.
Some eurosceptics might perhaps prefer to dream of a revival of that sort of special relationship between the United States and the United Kingdom which had been forged, again under the horizon of the agression emerging from Nazi Germany, between key allies in the World War II. However, as early as in 1952 Harold Macmillan (at that time Housing Minister) noted down in his political diary:
… The Cabinet today was interesting. Eden gave us his general impressions of the American visit. He had been forcibly struck – indeed horrified – at the way we are treated by the Americans today. They are polite, listen to what we have to say; but make (on most issues) their own decisions. Till we can recover our financial and economic independence, this is bound to continue … (Catterall, Peter [Ed.]: The Macmillan Diaries – The Cabinet Years, 1950-1957, p. 133. London: Macmillan, 2003).
Would anyone dare to seriously argue that this substantially has changed meanwhile? That sort of financial and economic independence Eden and Macmillan have talked about hardly will emerge from any EU exit of the United Kingdom. The Economist summarises the prospects of Britain walking away entirely as follows:
The most likely outcome would be that Britain would find itself as a scratchy outsider with somewhat limited access to the single market, almost no influence and few friends. And one certainty: that having once departed, it would be all but impossible to get back in again.
And, there is another big issue looming in UK domestic politics: A referendum on independence of Scotland might split the Kingdom into two states, Scotland most likely staying within the EU.
Well, it all will depend on the British people who need to make up their minds.
If, in the most extreme case, England, Wales, and Northern Ireland were bound to exit the EU completely – what would be (most likely) the consequences for the field of IP law?
- The European Patent Convention (EPC) is set up as an international treaty completely independent from the European Union. Hence, as far as EPC basic membership rights are concerned there should be no serious change of the present legal situation.
- Unitary Patent / Unified Patent Court: This new system, not even finalised yet, is open for EU Member States only. If any UK exit referendum results in a pro-exit vote before the UK have ratified the Unified Patent Court Agreement, the latter appears to be doomed because of it can enter into force only after ratification by the three largest patent filing nations. The United Kingdom is one of them. [Update: After exit of UK is complete and effective, UK does no longer count as Member State in Article 59 of the Agreement, and entry into force thereof depends on the three biggest filers of the remaining EU Member States.] The other way round, if the UK exit happens after the Agreement has entered into force, then there seem to exist insurmountable legal hurdles for the UK to remain party to the Agreement because of the Court of Justice of the EU explicitly has ruled that this new Court must be open only for EU Member States. Moreover, under political considerations it appears to be hardly possible that one of the divisions of the central chamber still remains located in London. UK attorneys will not / no longer be allowed to represent their clients before the Unified Patent Court. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
- Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks would no longer be binding for the UK. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
- EU Community Trade Marks / EU Community Registered Designs: As both Regulations are secondary EU Law, any withdrawal of the United Kingdom will cause that protection is no longer extended to the territory thereof. There will be a sensible debate as to whether or not protection for existing EU Community Trade Marks / existing EU Community Registered Designs registered prior to the exit on the territory of the UK can be maintained further. Probably UK attorneys might be stripped of their right to represent their clients before OHIM. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
- As soon as UK is no longer part of the EU internal market, several rules governing the exhaustion of IP rights will probably change as far as UK territory is affected. Again, if Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
A precise walk through the acquis communautaire surely will uncover other but minor legal changes, e.g. concerning Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, or concerning Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I).
Time will tell.
The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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