Posts by: Axel H. Horns

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

By On November 20, 2012 · 2 Comments · In EU law, EU Unified Patent Court, European Patent Law

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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Summer Break Is Over.

By On November 19, 2012 · 2 Comments · In EU law, European Patent Law

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.

 

Stormy Weather Ahead: Unitary Patent, ACTA in European Parliament

By On July 2, 2012 · 8 Comments · In EU law, EU Unified Patent Court, European Patent Law

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 Rapporteurs – Bernhard 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.

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BREAKING: Agreement On EU Unitary Patent Reached

By On June 29, 2012 · 12 Comments · In EU law, EU Unified Patent Court

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:

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BREAKING: EU Unified Patent Court – Munich Dropped Out?

By On June 20, 2012 · 1 Comment · In EU law, EU Unified Patent Court, European Patent Law

The EU summit (European Council) scheduled to be held in Brussels on June 28-29 is approaching, and there is some expectation that on that event there will be sort of a make-or-break decision concerning the planned EU Unitary Patent together with the treaty for creation of the EU Unified Patent Court.

It is well known that the entire problem is already politically reduced to the issue of finding a seat for the central division of the Court.

Contenders are Munich, Paris and London.

In preparation of the summit,  Mr Herman Van Rompuy, President of the European Council, and COREPER (Committee of Permanent Representatives) are extremely busy to stage some sketch for a solution which might then get rubber-stamped by the Heads of Government conferencing in Brussels next week.

In this situation Ms Sophie Mosca reports in Europolitics that Munich seems no longer to be on the shortlist, Paris appears to be the favourite and London could win some support functions for the Paris facilities.

Of course there is no official confirmation available, and if this message is true, it is still subject to the approval of the European Council by end of next week.

 

CJEU ‘Class Headings’ Case C-307/10 ‘IP TRANSLATOR’ – Final Judgement Is Out

By On June 19, 2012 · Leave a Comment · In EU law, Trade Marks

Just today the Court of Justice of the European Union (CJEU) have published their final judgement in case C-307/10 IP Translator. The main findings are (emphasis addeed):

Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that it requires the goods and services for which the protection of the trade mark is sought to be identified by the applicant with sufficient clarity and precision to enable the competent authorities and economic operators, on that basis alone, to determine the extent of the protection conferred by the trade mark.

Directive 2008/95 must be interpreted as meaning that it does not preclude the use of the general indications of the class headings of the Classification referred to in Article 1 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, concluded at the Nice Diplomatic Conference on 15 June 1957, last revised in Geneva on 13 May 1977 and amended on 28 September 1979, to identify the goods and services for which the protection of the trade mark is sought, provided that such identification is sufficiently clear and precise.

An applicant for a national trade mark who uses all the general indications of a particular class heading of the Classification referred to in Article 1 of the Nice Agreement to identify the goods or services for which the protection of the trade mark is sought must specify whether its application for registration is intended to cover all the goods or services included in the alphabetical list of that class or only some of those goods or services. If the application concerns only some of those goods or services, the applicant is required to specify which of the goods or services in that class are intended to be covered.

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EU Unitary Patent / Unified Patent Court: The Final Showdown Is Nigh

By On June 17, 2012 · 1 Comment · In EPO, EU law, EU Unified Patent Court, European Patent Law

Recently Document 10059/12 originating from the Danish EU Presidency and dated May 24, 2012, has been released to the public. It is titled Draft Agreement on the creation of a Unified Patent Court – Suggested way forward for a political agreement and addresses Permanent Representatives Committee (Part 1) / Counci (COREPER1). The Document re-iterates that, according to the Danish Presidency, the creation of unitary patent protection and the Unified Patent Court are key drivers for strengthening economic growth and job-creation in the European Union and cornerstones in building a strong science base in Europe.

Again according to that Document, on December 05, 2011, the Competitiveness Council had an exchange of views on the last outstanding issues regarding the creation of a Unified Patent Court based on Document 18239/11. At the end of those discussions, and while keeping in mind that nothing is agreed until everything is agreed, delegations had reached a general agreement on all but one outstanding issue, namely the place where the seat of the Central Division of the Court of First Instance will be situated.

No substantial portions of Document 18239/11 have been released yet; the heavily redacted published version only discloses some points of interest as follows:

  • Renewal fees
  • The financial contribution of the Member States hosting a local division, a regional division, the central division of the Court of 1st Instance or the Court of Appeal
  • Other financial contributions of the Member States
  • Court’s fees
  • Language of proceedings
  • Actions to be brought to the central division
  • Transitional period
  • Revision clause
  • Number of ratifications required for the entry into force
  • Breeders’ privilege
  • Local divisions
  • The seat of Central Division of the Court of 1st Instance, the seat of the Court of Appeal with the Registry and the seat of the Patent Mediation and Arbitration Centre

You will note that apparently the issue of the rights of European Patent Attorneys to represent their Clients is not mentioned on this list.

Now back to Document 10059/12. This text further discloses that at an informal meeting of the members of the European Council on January 30, 2012, the participating Member States (i.e. all EU Member States except ES, IT) stated their commitment towards reaching a final agreement on the European patent reform at the latest in June 2012. This commitment was confirmed by the European Council on March 01-02, 2012, and by the members of the European Council on May 23, 2012. Based on the common understanding that the texts of the draft Agreement on a Unified Patent Court and of the draft Statute of that Court have been thoroughly discussed under the Polish Presidency, the Danish Presidency is reported to have undertaken intensive consultations, aimed at reaching a compromise on the last outstanding issue concerning the seat of the Central Division. As a follow up on these consultations, the Danish Presidency invited the delegations of the participating EU Member States to discuss the location of the seat of the Central Division of the Court of First Instance with a view to reaching a political agreement.

Finally, reference is made to the fact according to which the Competitiveness Council on December 05, 2011, the participating Member States reached general agreement on a draft declaration of the contracting Member States concerning the preparation for the coming into operation of the Unified Patent Court, as contained in Document 17580/11 (Document again heavily redacted, little substantial disclosure). In response to several Member States having expressed the need for further clarification on the process following a political agreement on the patent package, the Danish Presidency now circulates a draft statement originating from the Danish Presidency but apparently also supported by the incoming Cypriot Presidency on the process following such a political agreement, as set out below:

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Software Patents: German CDU/CSU Foxed By Anti-Patent Framing Of NGOs From Past Decade

By On June 14, 2012 · 3 Comments · In EPC, Patentability, Patents, Software inventions

Mr Michael Kretschmer and Mr Günter Krings at the press conference

On an Official blog website blogfraktion.de of the parliamentary group of the Christian Democratic Union / Christian Social Union (CDU/CSU) in the German Bundestag I recently stumbled upon a green paper concerning copyright in the digital society (Diskussionspapier der CDU/CSU-Bundestagsfraktion zum Urheberrecht in der digitalen Gesellschaft) presented by Deputy Party Whips Mr Michael Kretschmer and Mr Günter Krings. While the main topic of this text, of course, is directed to copyright issues, we also can find a single paragraph devoted to so-called software patents or, more technically, patents on computer-implemented (respectively implementable) inventions as follows (I did some plain copy/paste operation and refrain from correcting spelling errors in the German original):

8. Urheberrecht statt Softwarepatenten

Computerprogramme werden richtigerweise durch das Urheberrecht geschützt. „Softwarepatente“ auf Quell-Codes laufen dem urheberrechtlichen Schutzzweck zuwider. Der urheberrechtliche Schutz ist flexibler und innovationsfördernder, weil dazu kein aufwendiges und teures Patentierungsverfahren notwendig ist. Die Anwendbarkeit des Urhebervertragsrechts stärkt außerdem die Programmierer (Urheber) gegenüber den Softwarefirmen (Verwertern).

Ein Richtlinienvorschlag der EU-Kommission, eine EU-einheitliche Patentierungspraxis für Software zu schaffen, ist 2002 gescheitert. Die CDU/CSU-Bundestagsfraktion lehnt auch weiterhin jede Ausweitung der Patentierungspraxis im Softwarebereich ab.

I would like to offer my own translation as set out below:

8. Copyright instead of software patents

Computer programs are rightly protected by copyright. “Software patents” on source code run contrary to the purpose of protection by copyright. Protection by copyright is more flexible and encourages innovation more because it does not require intricate and expensive patenting proceedings. Moreover, the applicability of the [German] law of contracts on copyrights strengthens the coders (creators) compared to software companies (exploiters).

A Draft proposal of the EU Commission for creating a unitary practice of patenting of software has failed in 2002. The parliamentary group of the CDU/CSU in the Bundestag maintain their rejection of any broadening of the practice of patenting in the field of software.

The first sentence of this statement asserting that computer programs are rightly protected by copyright is one of the few snippets of information from the text as quoted above which is by and large correct insofar historically the Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs had stipulated in its Article 1 that Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. However, the term “rightly” (“richtigerweise” in German) might, at least for German ears, be construed like suggesting that software protection by copyright is the only (proper and legitimate) way to define software-related Intellectual Property. This is not true. Article 9 paragraph 1 of the Directive says (emphasis added):

The provisions of this Directive shall be without prejudice to any other legal provisions such as those concerning patent rights, trade-marks, unfair competition, trade secrets, protection of semi-conductor products or the law of contract. [...]

In the next sentence: “Software patents” on source code run contrary to the purpose of protection by copyright, a stark theory is proclaimed deepening this initial stub of mis-understanding the law by setting forth in more detail there is sort of a contradiction between copyright and patent law. In fact, copyright law and patent law are mapped to different aspects of computer software, respectively:

  • From a copyright-centred point of view, a computer program is seen as a text (source code).
  • From a patent-centred point of view, a computer program is seen as an expression of functionality or of dynamic semantics described by operational and/or denotational semantics, i.e. it is viewed as an expression of run-time behaviour.

Copyright and patent rights can emerge from one and the same set of facts of a case. This phenomenon is not confined to copyright and patent law concerning software. Take, for example, a mud wing of a car:

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Will EU Unified Patent Court Decision Depend On Emergency Of EU Euro Crisis?

By On May 31, 2012 · 5 Comments · In EU law, EU Unified Patent Court, European Patent Law

Yesterday I had posted an article on the failure on the 3169th meeting of the Council of the EU in Competitiveness configuration (Internal Market, Industry, Research and Space) which was held in Brussels. As indicated, the final result was that the decision on the seat of the central division of the EU Unified Patent Court is said to be taken by the European Council at its meeting on June 28 and 29, 2012.

Well, the European Council should not be mixed up with the Council of the European Union.

The European Council consists of the Heads of State or Heads of Government of the Member States, together with its President and the President of the Commission. It defines the general political direction and priorities of the European Union. With the entry into force of the Treaty of Lisbon on 1 December 2009, it became an institution. Its President is Mr Herman Van Rompuy.

To the contrary, the Council of the European Union is the EU institution where the Member States’ government representatives sit, i.e. the ministers of each Member State with responsibility for a given area. The composition and frequency of Council meetings vary depending on the issues dealt with.

I must confess that due to some sloppiness in writing and in sake of brevity I frequently have labelled the Council of the European Union as “EU Council”, even in this blog. This is confusing. I should avoid this language in future.

So, after this preliminary digression it is now clear what will happen on June 28 and 29, 2012:

Ms Merkel and all of her colleagues on EU level are poised to undertake a (final?) approach to find a political solution to the question of the seat of the central division of the EU Unified Patent Court. Maybe that there is even a slim chance is that Spain and Italy (which now have changed their respective government since the failure of the EU Community Patent approach in 2010) jump on the bandwagon.

The German broadsheet Handelsblatt today runs a story indicating that on the 3169th meeting of the Council of the EU held yesterday the German delegation kept on fiercely fighting for Munich as seat for the central division but on the level of ministers no agreement could be reached.

In view of this situation it appears to be quite safe to say that the EU Unified Patent Court and, of course, the linterlinked enhanced co-operation for creating a EU Unitary Patent, will not only be dead with regard to the duration of current Danish EU Presidency (ending on July 01, 2012 anyway)  but probably also for a much longer time should the EU Euro crisis rise to higher levels such that the Heads of State / Heads of Government to be assembled in Brussels later this month need to be busy with firefighting on a full-time basis, having no spare time to resolve Intellectual Property issues.

In the Handelsblatt story, unidentified EU Diplomats are cited to have said that a solution will probably be found as part of a “package”. This means  that the country receiving the seat will be required to give in concerning some other compromise elsewhere. Or, the other way round: A country that is very generous elsewhere might expect to receive the seat of the central division on the basis of reciprocation. Hence, if the Euro crisis does not hamper the entire summit, Ms Merkel might have a chance to bring home the central division as some sort of a consolation gift if she gives in with regard to some of the pressing issues in the context of the current EU (Euro) crisis.

Furthermore, Handelsblatt explicitly writes that especially the Italian Government might be ready to join the club in a last minute move but was unable to do so yesterday because of they were unhappy with the state of the discussion on the seat issue. I can only hope that they do not carry on with nurturing pipe dreams of bringing the central division to Milan.

Obviously nobody on EU level is seriously negotiating any technical details of the patent package (Unitary Patent including translation agreement plus Unified Patent Court) any more. As said before, patent experts have been kicked  out unceremoniously. If (and only if) an agreement on the seat issue is reached, the entire matter probably will be pressed on an as-is basis through the institutions anyway.

[UPDATE 2012-06-01] See also this report by Sophie Mosca on europolitics.info:

“Italy proposed, in February, its candidacy for the seat of the central division of the unitary patent court system as a way of breaking the stalemate. Although its proposal was initially rejected because it was presented after the deadline of 4 December 2011 for the submission of candidacies, it has come back to the fore. “The Netherlands did the same recently, stressing that it did not wish to make the situation worse, but to propose The Hague as a candidate in order to calm the debate,” an informed source told Europolitics.”

This means that the Italian Government indeed wants to cash in sort of a dividend on dropping Mr Berlusconi’s opt-out refusal to join the EU Community patent project in 2010. I am not amused.

 

Intransparent Wheeling And Dealing re Unified Patent Court: Shouldn’t We Be Tired Of Being Put Off?

By On May 30, 2012 · 2 Comments · In EU law, EU Unified Patent Court, European Patent Law
Mr Ole SOHN, Danish Minister for Business Affairs and Growth.

Mr Ole SOHN, Danish Minister for Business Affairs and Growth, at the press conference.

Today, the 3169th Council meeting of the EU Council in Competitiveness configuration (Internal Market, Industry, Research and Space) was held in Brussels, chaired by Mr Ole Sohn, Minister for Business and Growth of Denmark. According to Document 10362/12, the Council

– held a preparatory debate in order to gather consensus on the location of the seat for establishing a unified patent court, with a view to a successful decision on the seat by the European Council at its meeting on 28-29 June 2012.

This means, of course, that once more no political solution was reached.

A few days ago, the Danish Presidency had circulated an important Document 10059/12 titled Draft Agreement on the creation of a Unified Patent Court – Suggested way forward for a political agreement which, however, – but no surprise – was not released to the public.

I have heard rumours from confidential sources that at the end of 2011 under the Polish EU Presidency some or all of the political actors dealing with the EU Unitary Patent / EU Unified Patent Court matter decided to drop all expert advice from (internal) civil service experts (from the EU Commission and the delegations of the EU Member States present at the EU Council meetings) in order to force a breakthrough by some purely political decision on the seat of the central division of the Unified Patent Court. If this is true, this information might indeed be suitable to shed some light on the somewhat strange situation last December, when the announcement of the Polish Presidency communicated by Document 17539/11 to organise an initialling ceremony whereby the text of the Unitary Patent Court Agreement could be finalised in Warsaw on 22 December 2011 was eventually rescinded with no clear indication of what really had happened behind the scenes. The official line appeared to be that all problems but the seat of the central division are solved whereas other voices indicated that more substantial issues were still open. Probably the political staff had decided to ignore all opinions from the internal experts, concluding that the entire EU patent project is not suitable to generate a consensus in any foreseeable time amongst experts skilled in this field of law.

Ministers addressed the last outstanding issue in the draft agreement for the creation of a Unified Patent Court, with a view to finalising the “patent package” without delay.

The debate showed that further work was needed to reach consensus on the location of the Central Division of the Court of First instance for the future unitary patent jurisdiction.

At the time being it is not known to me as to what nature the further work was needed to reach consensus on the location of the Central Division of the Court of First instance is supposed to be.