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Thursday, 14 April 2011

Enhanced cooperation in unitary patent protection: the paperchase begins!

The Kats have got
a lot of reading ahead ...
From the admirable Steve Peers comes good news: the European Commission's proposals for the fate of the patent system in divided-we-stand, united-we-er-argue Europe are now available online and in English. Steve observes:
"Would you believe that, at the moment, the English-language versions can only be found if you check the French-language version of the DG Internal Market website? C'est magnifique!"
The main proposal is the 25-page 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 (here).

Then there's a 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 (14 pages, here)

The impact assessment, which has nothing to do with the effect of the whole thing falling on your head (here).  Someone must be expecting a big impact since this document is 50 pages in length.  If however you want less of an impact, you can read the summary of the impact assessment instead (just seven pages, here).

The Kats haven't had time to read this all yet, but expect than their keenest readers are already doing so.


Anonymous said...

I already see a problem in the first proposal:

Article 5 - Prior rights

In the event of limitation or revocation on the ground of lack of novelty pursuant to Article 54(3) EPC, the limitation or revocation of a European patent with unitary effect shall take effect only in respect of the participating Member State(s) designated in the earlier European patent application as published.

Why should the substance of Article 54(4) EPC 1973 be reintroduced when it had been abolished in EPC 2000? The idea sounds to me very much like the opposite of a unitary patent. Furthermore, how could a member state adopt this proposal while simultaneously respecting Article 138(1)(a) EPC?

It is suggested on page 12 that this is proposed for reasons of "legal certainty". I fail to see how, and would appreciate an explanation.

In practice, since new EP applications now automatically designate at the outset all states, this should hardly matter, except at the time a new member state is admitted. So who sneaked this in and why?

And what about earlier national rights under Article 139 EPC? I might have understood if Article 5 of the proposal had concerned itself with this instead of Article 54(3), even though I would advocate an effect in all states as for 54(3) EPC 2000. Language was the essential reason the original EPC did not address centralized consideration of national prior rights.

Anonymous said...

The main points in my view:

a) Both proposals are arranged so as not to require any amendment to the EPC. In particular, the EU won't be joining the EPOrg.

b) No savings to be expected with respect to the maintenance taxes: maintenance taxes will be set so as to be comparable to those of the "average European patent". As a result, I believe that for many patentees it may be more cost-effective to stick to the traditional route and designating just FR+DE+GB (no additional translation necessary, lower maintenance costs). 50% of the maintenance taxes (minus administrative costs for the register of unitary patents) will still be reverted to the national patent offices (what for?!).

Still, the interesting part (the litigation arrangements) will be presented only in May. Also interesting are the suggestions of Commissioner Barnier that Italy may end up joining the reinforced cooperation. This is probably just psychological warfare against the two holdouts, but must be creating some tensions South of the Alps and the Pyrenees.

Anonymous said...

"Would you believe that, at the moment, the English-language versions can only be found if you check the French-language version of the DG Internal Market website? C'est magnifique!"

I am just wondering out aloud whether the apparent reluctance of the European Commission to wholeheartledly embrace the idea of putting out English-language texts has something to do with the rather less than wholehearted embrace in the UK of anything "European" (and that appears to extend even to this blog, where Eurocrats - or should that be Euro-Kats? - don't often get a good press ...

Jeremy said...

@Anonymous 3:40pm
Praise is there to be earned: it's not a commodity to which everyone has an entitlement to an equal share.
This blog does not criticise for the sake of criticism: it always seeks to be constructive. Ask the Eurocrats at OHIM if they feel they're being kicked around by insensitive bloggers here. I'd be surprised if they did.

The failure to make important materials available in the major international languages -- and not just English -- does everyone a disservice, as this blog has mentioned on many occasions.

Oh, and incidentally it wasn't the Kats who made the comment but the reader who kindly dug up the English-language links in the first place.

Steve Peers said...

The English-language text is there, it is just not where any actual English-language speaker would look for it. I stumbled across it while looking for the French-language version as a substitute for the English. I also noticed the English-language version of the proposal on the German-language site.

Incidentally, the same is true of the 'Single Market Act' paper issued on Wednesday, ie the English text is available on the French-language site, but not the English-language site. This paper includes some Commission plans regarding IP:

As to the substance of the new proposals, the main Regulation would no longer be dependent on either a patent litigation treaty coming into force, or the EU joining the EPC, an idea which has, as one commentator pointed out, been dropped. I also notice that the clause on compulsory licencing has been replaced by a general provision on competition law. This avoids another reference to the patent litigation court.

Another interesting point is the clause (12.3) which calls for Member States to allow appeals against EPO decisions in their national law. Presumably this answers the argument in the AGs' opinion (in Opinion 1/2009) that such appeals had to be possible as a matter of EU law. But legally does this require an EPC amendment? And to what extent would it complicate the grant process, add to costs etc.? For instance, which national court would have jurisdiction?

Anonymous said...

Dear all, Steve Peers was simply mistaken. The English-language versions of the proposals have actually been available in the English version of the DG Internal Market website from the beginning.

What may have misled Mr. Peers is that, while the links to the PDFs of the French- and German-language versions are at the end of each bullet point and helpfully tagged [fr] and [de], the main links, those to the English versions, are at the beginning of each bullet point and have been left untagged.

Presumably tagging the English-language links in the English-language website seemed redundant : you may notice that the same pattern is repeated in the French language website (tagged [de] and [en] versions, untagged main link to the [fr] version) and in the German-language website (tagged [fr] and [en] versions, untagged main link to the [de] version).

It isn't malice or an anti-English bias of the Commission, merely a bad interface design...

Anonymous said...

It's remarkable how touchy the champions of the benefits of reduced translation are if its the translation into their language that isn't readily available.

And where does a "major international languages" test sit in relation to a proposal designed for exclusion of Spanish from the system?

Anonymous said...

@ Jeremy
My apologies - I didn't expect my remark to be taken quite that seriously. It was meant to be little more than a tongue-in-cheek comment.

I have no doubt that whatever the original language of community proceedings happens to be, putting out an English language version should always be obligatory simply because it is the language most widely understood in Europe ...

(Oh, and just to avoid being accused of linguistic chauvinism, English is not my mother tongue - I hail from a part of the world not far from where they know how to keep runways clear in winter :-) )

Jeremy said...

@Anonymous 1:57pm

No need to apologise to a fictional cat. We must all listen to one another and take some lesson from it, or this weblog loses much of its purpose.

Steve Peers said...

Hmmm, no, the English-language version of the website still has no links to *any* version of the most recent proposals, or even any mention of them, even after following the version of the link suggested by 'anonymous'. Unless I am living in a parallel universe where the website just looks different. In that case there is obviously some fundamental defect at the Commission's end. I have downloaded a few documents from EU websites before, you know...

Is anyone else finding these texts on the English-language version?

Anonymous said...

Mr. Peers, I'm downloading the proposals. Just click on the underlined word "Proposal" in the English language website.

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