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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
Britannia – Quo vadis?
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:
17. January
… 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.
(Photo released to the public domain by Man vyi on Wikimedia)
A look into the Draft Agenda for the plenary session of the European Parliament on Tuesday, 11 December 2012 reveals that the discussion and vote on the Unitary Patent Package is due:
- #146 — Creation of unitary patent protection
Report: Bernhard Rapkay (A7-0001/2012)
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)]
Committee on Legal Affairs- #147 — Unitary patent protection
Report: Raffaele Baldassarre (A7-0002/2012)
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)]
Committee on Legal Affairs- #148 — Jurisdictional system for patent disputes
Report: Klaus-Heiner Lehne (A7-0009/2012)
Report on jurisdictional system for patent disputes
[2011/2176(INI)]
Committee on Legal Affairs
The final list of amendments tabled is available here. It looks as if this amendment #70 with some clarifications might prevail.
Also on December 11, 2012, at the Court of Justice of the EU in Luxembourg the Attorney General who is in charge of joined cases C-274/11 C-295/11 (Annulment of Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (OJ 2011 L 76, p. 53) Misuse of powers – Failure to respect the judicial system of the European Union) will deliver his or her Opinion. The Court might later well derive from that but the Opinion will, as usual, give a clue as to whether or not Spain and Italy might have some chance to spoil the project of enhanced co-operation in the field of patents at last.
According to the closing note at the very end of the text of the Draft agreement on a Unified Patent Court (Document 16222/12 [2012-11-14]), indication is given that the Agreement is scheduled to be signed on February 18, 2013 in Brussels. After that date, a rush to the respective national Parliaments of all of the participating Member States is attributed top priority on the agendas of the Governments; c.f. 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.
Article 59 Para. 1 of the Agreement stipulates:
Article 59
Entry into force(1) This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 58a, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EC) 44/2001 concerning its relationship with this Agreement, whichever is the latest.
Well, what would happen if the quorum of 13 ratifications including Germany, United Kingdom and France (i.e. the three Member States in which the highest number of European patents) is not reached in some foreseeable future due to some political misfortune? Take, for example, a purely fictional case where the United Kingdom instead of timely ratifying the Agreement holds a referendum resulting in a margin of votes in favour of leaving the EU at all (note also this and that).
In such case the Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection (Document 11328/11 [2011-06-23]) provides a matching clause in Aricle 22 Para. 2:
Continue reading »
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.
Continue reading »
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:
Continue reading »
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:
Continue reading »
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.
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.
MARQUES leaving its fingerprint on the interpretation of class headings
Yesterday evening, MARQUES, an association of worldwide brand owners that is an accredited organisation before the OHIM (cf. OAMI Users’ Group) and observer at the OHIM Administrative Board, has made a noteworthy move as it offered its interpretation of the conclusions to be drawn from the final judgement of the CJEU in case C-307/10 IP TRANSLATOR (see earlier report) in an open letter sent to the national IP offices of all EU member states, the Benelux IP office, and the Office for Harmonisation in the Internal Market itself. The letter is undersigned by Nunzia Varricchio, Chair of MARQUES Council, and my partner Jochen Höhfeld, Chair of MARQUES Trade Mark Law and Practice Team.
As already summarised here, the trademark application ‘IP TRANSLATOR‘ was launched as a test case by the Institute of British Patent Attorneys (CIPA) to obtain a review of OHIM‘s practise as to the meaning of class headings by the CJEU. The national UK trademark ‘IP TRANSLATOR’ was claimed for ‘Education; providing of training; entertainment; sporting and cultural activities’, i.e. the class heading of Class 41 of the Nice Classification. The UK IPO refused the application on the basis of Article 3(1)(b) and (c) of Directive 2008/95 and OHIM Communication No 4/03, according to which the trademark covers all services falling within Class 41, so that the trademark was considered lacking distinctive character and being descriptive in nature for “translation services”, which also falls within Class 41. The subsequent appeal to the referring court raised that the application did not specify, and therefore did not cover, translation services. The issued decision appears quite clear on this problem, as it clarifies
- that the goods and services must be identified with sufficient clarity and precision to enable third parties, on that basis alone, to determine the extent of protection;
- that the general indications of the class headings may be used provided they are sufficiently clear and precise; and
- that, if (all general indications of) a class heading is used, this will not be considered to cover the entire class if this is not considered sufficiently clear and precise (no. 62). In this case, the applicant would have to specify the goods and services further.
Thus, the CJEU clearly voted for the means-what-it says approach.
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