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"EU Unified Patent Court"
As already reported (here and there), up to now the EU has not published the compromise proposal which was subject-matter of the discussion in JURI last Monday. The only source available to the general public appeared to be a leak originally published on the website of Pinpact.com. They simply have put a PNG graphics file on their server showing a single page comprising the wording of Article 5a (new) as well as Recitals 9 and 10 in the style on a non-paper, i.e. without any Official headings etc..
Just today, the law firm of Bardehle Pagenberg has published another version of that document comprising 3 pages in total. On page 2 thereof we find an explanation which is, in my understanding, not from Bardehle Pagenberg but from the original Cyprus non-paper. The following paragraphs might therefore shed some light on the logic behind this proposal:
- The proposed new Article 5a of the UPP Regulation is based on the assumption that it would seem sufficient that the UPP Regulation itself provides for the right of the patent proprietor to prevent third parties from committing acts against which the patent provides protection. These acts cover both the direct and the indirect use of the patented invention by a third party (as initially spelled out in more detail in the former Articles 6 and 7 of the UPP Regulation). The right of the patent proprietor to prevent third parties from such acts is subject to applicable limitations (as initially spelled out in former Article 8 of the UPP Regulation). The details of this right and its limitations are now determined pursuant to new Article 5a(3) of the UPP Regulation – by reference to the national law of the Member State applicable under Article 10 of the UPP Regulation of which Articles 14f to 14i of the UPC Agreement (as now amended to apply also to European patents with unitary effect, see in more detail point 3 below) are an integral part.
- The UPP Regulation furthermore stipulates in new Article 5a(2) that the right to prevent third parties from infringing the patent and the limitations to this right shall be uniform in all participating Member States in order to satisfy the requirement of the Regulation’s legal basis, i.e. Article 118(1) TFEU which provides for the establishment of uniform protection. This means that participating Member States are prevented from adopting in their national law provisions which would undermine the uniformity of protection.
- Pursuant to new Article 5a(3) UPP Regulation, uniformity of protection will be achieved by the reference to the law of the participating Member State whose law is applicable to the European patent with unitary effect as an object of property pursuant to Article 10 UPP Regulation. Implicitly this refers to Articles 14f to 14i of the UPC Agreement, which correspond to the former Articles 6 to 8 of the UPP Regulation and which define the scope of the right of the proprietor, its limitations and prior user rights. Articles 14f to 14i of the UPC Agreement which previously applied only to ”classical” European bundle patents have now been amended so that they now apply also to European patents with unitary effect. These Articles defining the scope of the right, its limitations and prior use rights will form an integral part of the national law of each participating Member State in which the UPC Agreement will come into force and for which the European patent with unitary effect will become operational.
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A number of EU Council Documents relevant with regard to the Unitary Patent / Unified Patent Court have recently been published:
- Document 16222/12 [2012-11-14] Draft agreement on a Unified Patent Court and draft Statute – Consolidated text. Prepared by Cyprus EU Presidency.
- Document 16221/12 [2012-11-14] Updated draft declaration of the contracting Member States concerning the preparations for the coming into operation of the UPC agreement. Prepared by Cyprus EU Presidency.
- Document 18855/11 [2012-11-13] COMMON GUIDELINES Consultation deadline for Croatia: 23.11.2012
- Document 15765/12 [2012-11-05] Corrigendum to Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection.
- Document 14750/12 [2012-10-12] Draft agreement on a Unified Patent Court and draft Statute – Consolidated text. Prepared by Cyprus EU Presidency.
Especially Document 16222/12 appears to be of particular interest today; it reflects the shift of provisions of substantial patent law from the Draft Regulation into the Unified Court Agreement.
Concerning professional representation of parties by European Patent Attorneys, the state of play appears to be as follows:
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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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After the last-minute amendments of the Unitary Patent Regulation (UPR) by the European Council on 28/29 June, who suggested
that Articles 6 to 8 of the Regulation [...] to be adopted by the Council and the European Parliament be deleted
lead to a removal of this matter from the EU Parliament’s agenda and unleashed a wave of revulsion among members of the EU Parliament in general and those of its legal committee (JURI) in particular (see here and here), the direction in which today’s JURI meeting would go was not utterly hard to predict.
And in fact, today’s press release confirmed what could have been expected anyway:
The European Council’s move to change the draft law to create an EU patent would “infringe EU law” and make the rules “not effective at all“, Bernhard Rapkay (S&D, DE), who is responsible for the draft legislation, told the Legal Affairs Committee on Tuesday. Most MEPs strongly criticised the European Council’s move and agreed to resume the discussion in September.
Apparently, this opinion is backed by the Parliament’s legal service, assuming that deleting Articles 6 to 8 UPR would “affect the essence of the regulation” thus be incompatible with EU law.
Was it like this as the European Council decided on the Unified Patent Court?
As reported here and elsewhere [1, 2, 3], the European Council agreed on the EU Unitary Patent and a EU Unified Patent Court at last week’s Brussels EU summit after volatile negotiations – by ‘suggesting’ two significant amendments (see summit conclusion, page 2, item 3) as compared to what was know from the latest available draft text of the Unitary Patent Regulation dated 23 June 2011 (see here and here).
EU Court of Justice: The more severe one of those amendments that apparently was pushed through by UK Prime Minister David Cameron to please his eurosceptics allies at home, demands
that Articles 6 to 8 of the [Unitary Patent] Regulation [...] to be adopted by the Council and the European Parliament be deleted
essentially meaning that substantive EU patent law will not any more be subject to legal order of the Union highest court, the European Court of Justice (CJEU). I share my colleague’s view that this is nothing less than “an open declaration of deep mistrust, if not political warfare of significant parts of the UK conservatives against the CJEU and thus the European Union as a whole.
This move, however, could not escape the eyes of the European Parliament, which originally wanted to nod through this matter tomorrow (4 July 2012) whereas meanwhile the item was removed from the agenda under the harsh critics of rapporteurs Bernard Rapkay (S&D, DE) and Klaus-Heiner Lehne (EPP, DE): “scandalous breach of procedure“, “oriental bazaar” (did they read this item?), ”case would go straight to the European Court of Justice“. Due to the Council’s amendments, the first reading is thus rendered null and void.
It appears that the proudness of the Danish Presidency as well as the official cries of joy of e.g. EPO President Benoît Battistelli (“historic breakthrough“) and EU Commissioner Michel Barnier (“decisive step“) came far too early while stakeholders ask themselves if this mess could not have been prevented by a more transparent process, more cooperation with the potential system users, less political tactics, and less national egoisms and horse trading. It is depressive to say, but if the implementation of a reasonable EU patent system was the litmus test for Europe’s capacity for efficient policy-making, the conclusion can only be that the striking deficiencies of the EU’s political management appear to be insurmountable.
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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As reported, last week’s European Council summit has reached an agreement on the EU Unified Patent and a EU Unified Patent Court after volatile negotiations on 29 June 2012.
The EU Council thus made a big step forward on its way to achieve the final goal, as expressed in the annex of Doc 10059/12 of 24 May 2012:
On the 1st of April 2014 the system should be ready for the first registration of a European patent with unitary effect.
However, a number of steps – and one big legal problem – still remain to be taken. Already this July, the EU Parliament will have its first plenary session on the EU Patent Package that was postponed on 19 December 2011 by JURI (cf. minutes) and the EU Council will consider the issue as well:
- 3./4. July 2012: Parliamentary deliberations and votes on the three aspects of the “EU Patent Package” (unitary patent, translation arrangement, unified patent court);
- July 2012: Adoption of the Unitary Patent Regulation (unitary patent, translation arrangement) by the EU Council.
But it cannot be expected that the process will run smoothly, as the top-level negotiations at last week’s EU Summit ‘suggested’ – apparently under the pressure of David Cameron and eurosceptic Tory MPs lead by Bill Cash, Chairman of the influential Scrutiny Committee and ‘herald of the apocalypse‘ -
that Articles 6 to 8 of the [Unitary Patent] Regulation [...] to be adopted by the Council and the European Parliament be deleted.
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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French officials started inspecting possible locations of the UPC's Central Division in Paris
Some days ago we reported on a press report basically saying that Munich has been dropped out of the hard fought race for the seat of the Central Division of the future EU Unified Patent Court:
[...] Munich seems to be out of the running, Paris appears to be the favourite and London could win a few laurels.
Paris as the court location appears to be backed by the President of the EU Council, Herman Van Rompuy, while it is speculated that
[t]he smart money appears to be on Paris at the moment, but diplomats warn that it’s still anyone’s guess whether a deal will be reached.
Now, on the eve of the decisive EU Summit, another article clarifies that Van Rompuy’s compromise plan, being the “result of consultation with the most concerned member states”, in fact proposes to share the location of the court between Paris, London and Munich. According to this plan, the official seat of the court’s central division, its president’s office and registry will reside in Paris, while some departments will be based in London and in Munich:
Given the highly specialised nature and quality standards, we also propose to create specialised clusters in two sections of the UPC, one in London, the other in Munich, which will continue to deal with administrative matters.
As the wording ‘administrative matters’ appears to exclude – for now – that court chambers will be established in London or Munich, one may ask what kind of administrative support can be given by Munich and London if even the registry is bound for Paris.
However, even though all these rumours cetrainly have a core of truth, it is also true that the race will not be decided by ‘smart money’ but by the EU Heads of Government on the EU Summit on 28/29 June 2012. It is further true that the outcome will highly depend on and be strongly linked to the much more important negitiations as to how the EU depth crisis can be effectively tackled. And this central issue will be dominated by the antagonism between the EU leaders who dramtically proposed a ‘Grand Plan‘ (pdf here) to safe the eurozone and Federal Chancellor Angela Merkel, who is prepared to rule out eurobonds “as long as I live“. Hence, there remains plenty of room for discussion and compromise – also on the seat issue.
(Photo 2009 by El Brown via Flickr under a CC license)
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.
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