EU Patent Package: JURI has Spoken, But What did it Say? (UPDATE)

Inhabitants of Delphi's Temple of Apollo left for modern Luxembourg Temple

Yesterday the members of the EU Parliament’s Legal Affairs Committee (JURI) voted in three separate sessions on the EU patent package (see nos. 18 to 21 of agenda):

• Enhanced cooperation in the area of the creation of unitary patent protection, JURI/7/05848, Rapporteur: Bernhard Radkay (S&D).
• Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, JURI/7/05847, Rapporteur: Raffaele Baldassarre (PPE).
• Jurisdictional system for patent disputes, JURI/7/06168, Rapporteur: Klaus-Heiner Lehne (PPE).

Fitting into the parliamentary tradition of issuing celebrating press releases when it comes to the future EU patent system, like

• A step closer to an EU patent (22 Nov 2011) or
• Done deal on the EU patent? (01 Dec 2011),

yesterday’s post-vote press statement was titled

• EU patent gets Legal Affairs Committee green light (20 Dec 2011),

disclosing, besides the well-known mantras as to the beneficial effects of the new European patent system, the liberating message that

Legal Affairs Committee MEPs backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called “EU patent package” [...]. If Parliament as a whole and the Council confirm the deal, a new EU patent will be created.

Nota bene, while the headline itself is not that spectacular since it only refers to the much less controversial “EU Patent” (i.e. the European patent exhibiting unitary effect in the EU25 states), the statement itself suddenly and confusingly speaks of the whole “EU Patent Package”, i.e. the Unitary Patent and the Unified Patent Court.

But, as already wondered by the IPKat,

if anyone knows where the AmeriKat can find the latest drafts of the Regulation and Draft Agreement that were vote don during today’s JURI vote, please let her know.

Exactly. The crucial question is what did JURI actually vote on yesterday, after the Competitiveness Council meeting of December 5 failed (see our earlier posts [1], [2], [3]), which implies that there is no such thing as a text accepted by both EU Council and JURI as represented by rapporteurs Bernhard Rapkay (Unitary Patent Protection), Raffaele Baldassarre (Translation Arrangements) and Klaus-Heiner Lehne (Jurisdictional Aystem for Patent Disputes). However, before the decisive  December 5 Competitive Council meeting (see earlier post here), the three rapporteurs received a robust mandate to clear the unresolved issues – especially regarding the Unified Patent Court – and to prepare for an agreement with the Council in back-room-negotiations (see earlier post here) which apparently was achieved, as suggested by the press release of December 1 (confusingly also naming the “EU Patent” in the title and the “EU Patent Package” in the statement itself).

These preparational back-room pre-Council negotiations are the “political deal struck last 1 December between Parliament and Council negotiators” referred to in yesterday’s press release – but not any sort of ‘official’ agreement between JURI and the Council that might have the chance to enter into force one day.

Therefore, according to my interpretation, the drafts of the Regulation and Agreement that were voted on yesterday are presumably the same that JURI carried into the back-room negotiations and that were, at least to the extend of the Judicial System/Patent Court, not accepted by the Competitive Council on December 5 (see our earlier posts [1], [2], [3]):

1. Unitary Patent: Proposal COM(2011)0215 with JURI draft report PE472.059,
2. Language Regime: Proposal COM(2011)0216 with JURI draft report PE472.334,
3. Judicial system: JURI draft report PE472.331.

As the original agenda for implementing the EU Patent Package proposed that the EU Council would on its December 5 meeting agree on something similar as the compromise found in the pre-Council negotiations between JURI and the Council so that JURI could let that pass on 20 December and the EU Council on its 22 December meeting, this desired outcome meanwhile is impossible to happen as there simply is no ‘EU Patent Package’ that the EU Council agreed on and JURI is satisfied with, due to those issues that were left unresolved at the December 5 Competitive Council meeting (see our earlier posts [1], [2], [3]).

JURI’s “green light” for the Unitary Patent doesn’t help much since the Polish Presidency’s end-of-term Council meeting on 22 December will most probably not be the day of initialling the EU Unified Patent Court, as originally expected by the Presidency, thus laying the whole project into the hands of the incoming Danish Presidency. However, as nothing is impossible in this decades old saga, I wouldn’t categorically exclude that the German and UK Council delegations agree on the vacant seat of the Central Division of the Unified Patent Court (maybe for a compromise location like Luxembourg or Milan) on the very last metres and by that enable initialling the ‘Warsaw Convention’ tomorrow (should the seat really be the only unresolved issue which is unlikely though).

But the by far most likely scenario is that yesterday’s JURI voting didn’t change much.

UPDATE (23.12.2011): Meanwhile it is clear that it came as expected above. The initialling ceremony for the Agreement on the Unified Patent Court was quitely omitted by the Polish Presidency, since there was nothing to celebrate. Instead, the incoming Danish Presidency prepares its term by concentrating on a number of top issues among which is, once again, the poor old common European Patent system awaiting its next metamorphosis (see fact sheet).

(Photo 2010 by Chucknado via Flickr under a CC license)