Posts by: Axel H. Horns

European Scrutiny Committee of the UK House of Commons On Unitary Patent

By On January 12, 2012 · 1 Comment · In EU law, EU Unified Patent Court

UK Houses of Parliament, London

José Manuel Durão Barroso, President of the European Commission, has delivered a Statement on the occasion of a meeting with Helle Thorning-Schmidt, Prime Minister of Denmark, on January 12, 2012:

The same goes for a common unitary patent in Europe! Frankly we are almost there; there are now some divisions between France, Germany and Britain on things that are not so difficult. We can finalise the Community patent that we have been discussing for 30 years so it is about time to come to a solution and I know that Denmark will put its influence to find a solution.

Apparently this is something like a morale-boosting slogan, a rallying call, pep talk. We shall wait and see what really will happen during the coming months of the Danish EU Presidency.

Meanwhile the European Scrutiny Committee of the UK House of Commons uttered concerns that some of the draft plans for a single EU-wide patent system could disadvantage UK small businesses, Out-Law.com reports.

In detail, the conclusions of the Committee were not very favourable:

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Linguistic Secretariat Of The EU Council About To Finalise Regulation Implementing Enhanced Cooperation In Area Of Creation Of Unitary Patent Protection

By On January 10, 2012 · 1 Comment · In EU law, EU Unified Patent Court

This is just a brief notice concerning the envisaged Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection. As we all know, the past Polish EU Presidency was not successful in delivering a final compromise on one of the other main components of the EU patent package, the Agreement on the creation of a Unified Patent Court. At least the question of where to put the seat of the Central Division could not be answered, and other issues might be unresolved as well. The incoming Danish EU Presidency extending from January to July 2012 obviously is determined to carry on with that task.

Just now the linguistic secretariat of the EU Council has sent out Document CM 1068/12 conveying an invitation addressing the Jurists/Linguists Group of the Council, summoning Members thereof to meet on January 26, 2012, in order to finalize the text of the Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (PE-CONS 72/11 – 2011/0093 (COD)) from a legal and linguistic point of view.

In my view this is an indication that dice is cast with regard to the political issues surrounding the Regulation. We shall wait and see if the Danish Presidency also can surmount the obstacles still barring the partners of the enhanced cooperation from finding a political solution with regard to the UPC Agreement.

 

EU Council: Something To Hide? Might Legal Opinion Tun Out To Be A Bombshell?

By On December 18, 2011 · 3 Comments · In EU law, EU Unified Patent Court

Recently I spotted an entry for Document 15856/11 in the Public Register of the EU Council. The paper is titled OPINION OF THE LEGAL SERVICE – Draft agreement on the European Union Patent Jurisdiction (doc.13751/11) – compatibility of the draft agreement with the Opinion 1/09 and marked confidential (“LIMITE“). After having filed a request based on Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents I was served with a heavily redacted version of the requested Document.

In the effect, all significant portions of the Document were deleted. The only real disclosure is to be drawn the introductory narrative:

At the Competitiveness Council on 29 September 2011 the Legal Service was asked about the compatibility with Opinion 1/091 of the Court of Justice of the European Union (the “Court of Justice”) of a draft agreement on the European Union Patent Jurisdiction (hereinafter “the current draft agreement”), elaborated by the Presidency of the Council in September 20112. This contribution further develops and constitutes a written version, requested by the Council, of the statement made orally at that meeting.

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One Of The Lesser Problems Of EU Unitary Patent Project: Relation To Brussels I

By On December 12, 2011 · Leave a Comment · In EU law, EU Unified Patent Court

On December 02, 2011, the General Secretariat of the EU Council sent to Permanent Representatives Committee (COREPER Part 1) Document 17407/11 titled Draft agreement on the Unified Patent Court – Relationship of the draft agreement on the Unified Patent Court with Regulation (EC) No 44/2001 Brussels I, originally classified LIMITE.

I was able to obtain a copy of that Document by means of a request in accordance with Article 15(3), third subparagraph, of the TFEU. Specific rules governing this kind of public access to Council documents are established in Annex II to the Council’s rules of procedure. These rules apply mutatis mutandis to European Council documents, as stipulated in Article 10(2) of the rules of procedure of the European Council.

In fact, Document 17407/11 conveys a non-paper from the Commission services  dated November 30, 2011. The Commission services have considered the relationship of the draft agreement on the Unified Patent Court in the version of Council documents 16741/11 of November 11, 2011 and 17539/11 of November 24, 2011 with Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). The non-paper presents, to the extent possible, solutions to arrange that relationship in a legally sound and certain manner. The proposed solutions should be considered preliminary.

Of course, in the current situation problems concerning the relationship between the envisaged UPC agreement, on the one hand, and Bruisels I, on the other hand, clearly appear to be of lesser importance. However, these aspects surely contribute to the overall weight of problems to be resolved in principal before the intended ceremony on December 22, 2011, can take place in Warsaw.

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EU Patent Package: No (Complete) Solution Yet.

By On December 6, 2011 · Leave a Comment · In EU law, EU Unified Patent Court

Mr Antonio TAJANI, Vice President of the European Commission (left) - Mr Waldemar PAWLAK, Polish Deputy Prime Minister and Minister for Economy, President of the Energy Council - Commissioner Michel BARNIER

Yesterday, the first day of the 3133rd Council meeting in the Competitiveness configuration (Internal Market, Industry, Research and Space) was held in Brussels under the EU Presidency, chaired by Mr Waldemar PAWLAK, Deputy Prime Minister and Minister of Economy of Poland. Document 18115/11 conveys a press release saying :

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EuroParl Website Relaunch: How to Disconnect General Public From Relevant Information

By On November 30, 2011 · 4 Comments · In EU law

This is what you get when searching JURI Documents

Since more than a decade all important bodies of national states as well as of the European Union do have a website of their own. This is partially welcomed by broad circles of clerks as well as of politicians because of such website can well be utilised as a showcase for press releases and other advertising-style material. On the other hand, such technical means can as well be used to facilitate the inspection of internal documents by the general public, and this is something not everyone likes because of sharing internal documents in many cases also means sharing some of the power conferred by the office.

Not long ago I posted an article based on certain documents of the Committee on Legal Affairs (JURI) of the European Parliament. Since then, obviously a relaunch of the entire website of the European Parliament has happened. Guess what now works and what not:

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Class Headings Dispute: Heavy Weather Ahead For OHIM

By On November 29, 2011 · 1 Comment · In EU law, Trade Marks

Today, in the Court of Justice of the European Union the Opinion of Advocate General BOT concerning Case C‑307/10 has been delivered (Chartered Institute of Patent Attorneys v Registrar of Trade Marks (Reference for a preliminary ruling brought by the Person Appointed by the Lord Chancellor under Section 76 of the  UK Trade Marks Act 1994, on Appeal from the UK Registrar of Trade Marks, submitted by the High Court of Justice of England and Wales (United Kingdom)).

What is the matter?

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Warsaw, December 22, 2011: The Day Of Initialling The EU Unified Patent Court

By On November 28, 2011 · 5 Comments · In EU law, EU Unified Patent Court, European Patent Law, Patents

European Council - Brussels, 23 October 2011 - Family photo (Next reunion: December 09)

Document 17539/11 authored by the Polish EU Presidency, titled Draft Agreement on the creation of a Unified Patent Court – Guidance for future work and directed to Permanent Representatives Committee ( COREPER Part 1) unveils under item 11 thereof:

The Presidency announced its intention to organise the initialling ceremony whereby the text of the Agreement could be finalised in Warsaw on 22 December 2011. The Presidency considers that the Member States should be able to arrive at a political agreement on the text of the Agreement at the meeting of the Competitiveness Council on 5 December 2011 on the basis of this set of compromise proposals, despite the fact that some issues of political importance could be left to be agreed at a later stage, but before the signature of the Agreement.

Well this appears to be quite big an issue. Why? Well, … in Document 16741/11 titled Draft agreement on a Unified Patent Court and draft Statute – Revised Presidency text we see current wording of Article 5 (1a) printed as follows:

(1a) The central division shall have its seat in [...]. The contracting Member State hosting the central division shall provide the necessary facilities for that purpose.

And, in a corresponding way, current wording of Article 7 (4) reads:

(4) The Court of Appeal shall have its seat in [...].

It is to be understood that the the initialling ceremony scheduled to happen in Warsaw on December 22 would be pointless if there isn’t a finalsed text of the entire Agreement ready for signing .. without those ellipsis in Articles 5 (1a) and 7 (4).

With other words: A political decision as to how to locate the seat of central portions of the UPC system is due to well ahead of the planned ceremony in Warsaw. For more details on the timetable, see also Volker Metzler’s post on visaepatentes.com.

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Rushing To Set Up The EU Unified Patent Court

By On November 24, 2011 · 2 Comments · In EU Unified Patent Court

On November 22, 2011, the General Secretariat of the Council of the European Union has sent Document 17317/11 to the Permanent Representatives Committee (COREPER Part 1) titled Draft Agreement on a Unified Patent Court and draft Statute – Draft Declaration for an operational UPC – Revised Articles 18, 19, 58, 58a, 58d and 59. Following up to discussions having taken place in the Permanent Representatives Committee on November 18, 2011, on the basis of the Note to the Permanent Representatives Committee contained in 17120/11 REV 1 (not published), the Polish EU Presidency has submitted, for discussion on November 23, the following texts :

  • A draft Declaration, to be made by the Contracting Member States upon signature of the Agreement, ensuring that the future Unified Patent Court shall be operational at the moment its enters into force (see Annex I) as referred to in point 8 of the above Note;
  • Revised drafts for Articles 18, 19, 58, 58a, 58d and 59 (changes in relation to the previous version set out in 16741/11 are underlined) (see Annex II), which reflect proposals of the Presidency as outlined in the above Note.

The Draft Declaration sets out the political will power not only to rush the Unified Patent Court (UPC) through as fast as possible but also to make sure that it will be operational immediately after it has been formally set up (Annex I):

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JURI Legal Committee Of The European Parliament Deals With EU Unitary Patent

By On November 24, 2011 · 5 Comments · In EU law, EU Unified Patent Court

Even beyond the Draft Report on a jurisdictional system for patent disputes (Rapporteur: Klaus-Heiner Lehne) reported earlier (here and here) there appear to exist a number of interesting papers of the Committee on Legal Affairs of the European Parliament (JURI) available on-line:

  • Document PE472.331v01-00: Amendments 1 – 25 / concerning “Motions for a resolution” – Draft report by Klaus-Heiner Lehne (2011/2176(INI)) – Jurisdictional system for patent disputes;
  • Document PE472.334v02-00: Draft Report on the proposal for a Council regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (COM(2011)0216 – C7-0145/2011 – 2011/0094(CNS)) including Amendments 1-19; Rapporteur: Raffaele Baldassarre;
  • Document PE472.334v02-00: Amendments 20 – 47 / Draft report by Raffaele Baldassarre (2011/0093(COD)) - Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements; and
  • Document PE472.059v02-00: Draft Report on the proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD))including Amendments 1 – 44; Rapporteur: Bernhard Rapkay; and
  • Document PE472.059v02-00: Amendments 45 – 94 / Draft report by Bernhard Rapkay (2011/0093(COD)) - Proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection / Proposal for a regulation (COM(2011)0215 – C7-0099/2011).

These papers apparently have been discussed during the recent meeting of the Legal Committee held on November 21-22, 2011, in Brussels (Document PE475.963v01-00). I have no clue so far as to the outcome of that session.

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