Currently viewing the tag: "EU Commission"

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.

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Occurrence of the term “FRAND” in Google searches during the previous 12 months. In November 2011 (A) the EU Commission started investigations against Samsung due to possible infringement of FRAND conditions. In February 2012 (B) Google announced that the acquired Mororola patents will remain to be licensable under FRAND conditions.

In Part 1 of our series of two postings on political and business issues in the discussion on FRAND licensing in Europe, we sketched the EU Commission’s political approach towards maintaining free markets in times of standard-essential patents.

Now, in Part 2, we will have a closed look at what the various industry players in the ‘smartphone war’ say and do.

The ‘Smartphone War’: The significance of Mr Almunia’s agenda can be easily derived for the global patent conflict that initially started between Apple and Samsung and meanwhile, after months of infringement suits and injunctions, involves also essentially all other important Internet and mobile telco players such as Google, Motorola, Microsoft, Nokia and HTC. In an earlier posting we considered this to be a sort of stress test for the patent system as it currently is.

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EU Commissioner of Competition Joaquín Almunia in November 2011

This is the first in a series of two postings – the second part will be published later today -, that relate to both the political and business attitude towards FRAND licensing in Europe. As there are two main players in that game, namely the EU Commission as the political market watch-dog and the Smartphone industry as patent holders and actors on these markets, we will first have a look at the political agenda of the EU Commission towards ensuring free market access in a world of standard-essential patents, as articulated in clear words only recently. In the light of the Commissions approach, the hint at the “Commission’s position as regulator-in-chief of the global technology industry”, as seen by the Financial Times back in 2007 , might never have been more true than today.

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Benoit Battistelli (EPO) and Michael Barnier (EU Commission)

Benoît Battistelli and Michael Barnier at the 2011 European Inventor Award ceremony

Yesterday the EPO News channel reported on a “renewed commitment to cost-efficient European patents” by the EPO and the European Commission. As nobody really had the slightest doubts on the continued and strong support by the project’s two main driving forces, this “news” does not sound that confident and persuasive as it apparenty was intended.

I cannot help, but to me it sounds more like political PR language or even autosuggestion if the President of the EPO, Benoît Battistelli, and the European Commissioner for the Internal Market and Services, Michel Barnier, jointly confess that “the unitary patent is [...] expected to simplify procedures and lower the costs for applicants by up to 70%“.

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