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Tuesday, 6 December 2011

UPDATE: “Further work is still needed” Council says after debate on EU patent package

The AmeriKat gargling, yawning,
or screaming about the lack of
televised debates - take your pick
Happy Tuesday Morning, from the AmeriKat! In the early hours of the morning while the AmeriKat was gargling her 30th glass of salt water in London, someone in Brussels was busy putting together the press release after the first day of meetings of the Competitiveness Council (note -the press release is marked "provisional version"). An earlier press conference given by Polish Deputy Prime Minister Pawlak and Commissioner Barnier gave the impression, at least to this Kat, that an agreement on everything save for the location of the court had been achieved. The press release however gave a more measured view stating that
 “The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011” 
The press conference and later press release followed a policy debate by EU ministers in charge of their Member States intellectual property files (for the UK - Baroness Wilcox). The press release states that the debate was
"...on the creation of a unified patent litigation court, as a part of a package aimed at establishing a patent system with unitary effect that ensures uniform protection for inventions across Europe, together with the corresponding translation arrangements." 
A EU t-shirt, for no other reason
than the AmeriKat is bored
of pictures of EU flags
The AmeriKat may be an being an over-analytical lawyer, but does that mean that they only debated the court and translational arrangements, not the patent protection proposal or that they may have also debated the patent protection element? She is still not 100% clear what was and was not debated by EU Ministers. However, the press release went on to set out “the essential elements of the compromise” [“What are the non-essential elements of the compromise”, wonders the AmeriKat, "and does this mean they are subject to compromise or have been compromised?"]. These were as follows:
1. The seats of the Central Division of the Court of 1st Instance, the Court of Appeal and the Patent Arbitration Centre  
 Several proposals have been made by member states interested in hosting the seats.
2. The financial contribution of the member states hosting a local division, a regional division, the Central Division or the Court of Appeal  
The host member state would provide for the necessary facilities, equipment and, for the initial period, the management of the administrative staff. 
3. Other financial contributions of the member states  
While the objective should be that the Unified Patent Court becomes self financing over time, financial contributions will be required in the setting up phase based of a balanced and transparent formula.

4. Language of proceedings  
While the principal should be maintained that the language of proceedings of a local division can be changed only with the agreement of both parties, a party could address a request to the President of the Court in order to change the language of proceedings for reasons of convenience and fairness.  
Who to sue and where to sue - you decide...
5. Actions to be brought to the central division  
The possibility to enhance the role of the central division and give parties the choice to bring actions from infringements concerning a number of member states before the central division instead of bringing them before a local or regional division. Under the compromise the parties would have the choice to bring an infringement action before the central division if the defendant is domiciled outside the EU.  
6. Number of ratifications required for the entry into force  
There is general consensus that the Unified Patent Court should enter into force once a minimum number of member states have ratified the Agreement.  
7. Transitional period  
A transitional period will be fixed for "classical" European patents without unitary effect during which actions can still be brought before the national court.  
8. Revision clause  
A range of provisions would have to be reviewed by the administrative committee in order to improve the functioning, efficiency and cost effectiveness of the Unified Patent Court and the quality of its judgements. 
Like the revolution, the unitary patent
debates will not be televised....
The press release again refers to what the Amerikat has previously reported – a provisional agreement has been achieved between the Council and the Parliament which we believe to be this draft compromise. According to the press release, the European Parliament is expected to vote on the two regulations - the creation of unitary patent protection and the translation arrangements - in early 2012. This draft compromise points to the unitary protection element not needing to be debated.  However, the Amerikat would like to know exactly what was debated last night and what was capable of being televised and what was not.  The AmeriKat is concerned that this entire process and debate has been undertaken behind closed doors.  It may be the tonsils talking, but she is concerned that a curious side effect of the EU no longer being a signatory is that under the cloak of "its an international agreement" it has enabled Member States to debate swaths of this patent legislation, legitimately or not (who knows?), away from the scrutiny of the public.

So what do readers think?  Is there some more breathing room to try and resolve some of the other concerns, or is this really only a debate about who gets the Central Division?   Should we be getting more information about what was being debated by the Council last night?  Does this press release tell us enough?

8 comments:

Anonymous said...

This issue gets rather interesting. According to this website

http://euobserver.com/19/114513

Britain and Germany refused to cede the Central Division to France, as envisaged by the presidency.

Further, the website reports that Luxembourg would get the appeals court, Slovenia and Portugal two mediation and arbitration centres and Hungary a training facility.

In my opinion this reaction of Britain and Germany is perfectly understandable. Why should they agree to a deal that favors only one of "the big three".

Although I am German I would support a compromise that would give the seat of the Central Division, the Appeals Court and the Mediation and Arbitration Centre(s) to "smaller" countries (none of "the big three"). How about giving the Central Division to Poland and the Appeal Court to Luxembourg?

Anonymous said...

Build a new court at Schiphol airport, next to the Sheraton. Easy for everyone to get to.

MaxDrei said...

If it were Munich, would UK veto? If it were to be Edinburgh, would Germany veto that proposal. For Team Sarko, if Paris is no go, would it too settle for Edinburgh, as the next best thing?

I can well imagine that the litigant users could live with Edinburgh. The judges there do write their decisions in the internationally useful English language. But could London ever bring itself to propose Edinburgh? What do you think?

Steve Peers said...

There is a legal requirement (in the Treaty and the Council's rules of procedures) to hold public debates on all legislative matters, with no exceptions. Otherwise it is mostly a discretionary decision whether to hold debates in public. It is not material whether the EU is still a party to the patent court treaty or not, it would still be a non-legislative matter on which it would only be a matter of discretion whether or not to hold a hearing.

On at least one previous occasion (in May; there were perhaps others) the debate on the patent court treaty was public, because it was part of a broader debate on the legislation. Had the legislation stayed on the Council agenda on December 5th, then again the debate on the draft treaty might have been public by such osmosis. But I suspect that the Presidency was quite pleased to take the legislation off the agenda, since it meant that the politically difficult debate on the seat of the patent court did not have to be held in public.

Anonymous said...

We need to remember the purpose of the unitary patent is to reduce the costs to business associated with obtaining patent protection across the single market. This particular aim is not one of federalism.

The location of the courts must therefore be based on practical reasoning and not handed out to the 'little countries' to avoid conflict between the economic powerhouses. They will obviously happily accept these sweets (correct term = bribes for favours returned) all day long. If Germany, France and the UK, only, have bid for the courts then the decision must be made between those three, all capable, but with different reasons for and against.

I'd initially guessed France as the proposed destination, based on 'my always harping on about the single market' reasoning. However, I plumped for Germany, because I didn't think Germany would oppose the choice of France after yesterday's other EU events.

Funny how the discussions on such an international agreement (hence our representatives can act in secret) seem to follow the usual EU power struggles.

I find the transitional arrangements a little absurd unless I am not understanding these correctly? I wonder, is it actually possible for a national patent obtained via the EPO to be re-unified? The patentee has expressly applied for and paid for a national patent, though choosing the EPO procedural route, they could have instead gone via their national route.

Anonymous said...

Doesn't anybody else find it more than a little unseemly that, after berating Spain and Italy for their "egoism" in the language issue, and launching the "reinforced cooperation" in order to circumvent it, it is precisely the three countries whose national languages are the three official EPO languages who are now holding up the whole process over such a transparently self-serving matter?

Maybe the other countries should start their own "reinforced cooperation". Although the interest of a unitary patent and patent court without Germany, Spain, France, Italy or the UK is going to be somewhat diminished...

Anonymous said...

Basing decisions on "practical reasoning" is all very well in principle, and makes perfect sense to those who are used to influencing others by evidence and logic: however, the decisons are being made by politicians who are used to making their decisions on horse trading principles rather than logic, and then justifying their decisons by "spin".

Steve Peers said...

I think Art. 22(5) of the final text (ie the fourth column) might only mean that a unitary patent can only be requested if the European patent is granted on or after the application date of the regulation.

Or it could also mean there could be an application for conversion of a bundle patent to be registered as a unitary patent once the Regulation is in force. It is not clear to me if this would trigger a new procedure at the EPO though? But it should follow that anyone choosing this process would no longer have the option to escape the jurisdiction of the unified court.

Either way, this is clearly only an option ('may').

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