For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 6 December 2011

UPDATE: Luxembourg to get Appeals Court, Brussels I and the Unified Patent Court, and more news (UPDATED)

The AmeriKat pawing through
all of her e-mails...
Tonight, while her work colleagues are enjoying good wine, food and company at what would have been her first of this season's holiday parties, the AmeriKat has been busy sifting through the numerous rumors regarding the seat and seats of the Unified Patent Court, comments on the debates, and other e-mails that have landed in her tray (of the e-mail variety, not litter). Although it has been a quieter day in Brussels, she has sifted through all of the comments and has distilled the most interesting elements of the news for readers below. 

No news on Central Division seat, but did Luxembourg get the Appeals Court? 


Following last night’s press conference where President Pawlak stated that the only issue that was left to be decided was the seat of the Central Division, EUObserver today reported that 

“[u]nder the non-contentious parts of the deal, Luxembourg would get the appeals court, Slovenia and Portugal two mediation and arbitration centres and Hungary a training facility.” 
Fun Flag Fact: Often confused with
 the flag of the Netherlands, the  flag
of Luxembourg is derived from the
 colors of the Grand Duke's Coat of Arms .
UPDATED:  The Polish Presidency's website indeed confirms that the Council reached agreement that Luxembourg would be the seat of the Court of Appeal, Lisbon and Ljubljana would be the seats for the mediation and arbitration centers.  However, the AmeriKat has not found this reported in any official EU press release or document.  Is this indicative of a more cautious approach by the Commission while discussions are still afoot or an eager Polish Presidency?  Thank you to Chris Rycroft (Lewis Silkin) for alerting the AmeriKat to this announcement.    


The cities who are reported to be vying for the Central Division are London, Munich and Paris, but two Member States are arguing about the location of the Central Division. Commissioner Barnier said 
“I would find it very difficult that these two large countries won’t be able to support the measure because it is so important for the single market and they are of course the first ones to defend the single market …”
"Slow down, you're 
moving too fast.... "
EUObserver suggests that the Polish Presidency proposed Paris as the seat of the Central Division with Germany and UK disputing the location. In the context of the French Commissioner's comments and given that France is not particularly interested in the internal market (or are they?), it makes sense that the two countries are Germany and the UK (click here for post and comments on the identity of the Member States) that when the French Commissioner.  

No matter who they are, the effect of the two Member States’ disagreements have been instrumental in slowing down the speed of this process.  Some observers hope that this delay will allow more time to fully discuss the substantive provisions -- which the AmeriKat understands have yet to be agreed at all -- before an agreement on the entire patent package is reached.


Have we forgotten about Brussels I and the Unified Patent Court? 


"Don't forget to eat your Brussels sprouts!" -
but have we forgotten our Brussels I ?
Plonking into the Kat’s inbox today was  this document dated 2 December 2011 entitled “Relationship of the draft agreement on the Unified Patent Court with Regulation (EC) No 44/2001 Brussels I”. She has had little time to read this document but it reminded her that there are other issues, besides substantive patent law, that the unified patent system will affect. She will let the Kat’s intelligent and analytical readers digest the document and let the Kat know if they agree with the preliminary proposed solutions that are hoped to “arrange [the relationship between the Unified Patent Court and Brussels I] in a legally sound and certain manner.” See earlier IPKat post on previous EU documents addressing the compatibility of the patent provisions with Brussels I.  


Sitting, waiting, wishing - at a loss of what to do while EU ministers are in discussion?


For those readers who become restless in interim periods of inactivity, you may be wondering what there is to do while the EU Ministers are still in discussion. Like what the Chartered Institute of Patent Attorneys did today, you could write a Briefing Paper on the European Patent Proposals (click here). For those who enjoy the face-to-face interaction of speaking to their national government ministers and MEPs, a spot of old-fashion democratic engagement may be what the doctor ordered. However, given how late in the day these events have come and given their obvious political sensitivity how effective would that be? 

Has the time for Plan B come yet?
Professor Steve Peers of the University of Essex, who has followed many EU decision-making processes in the past, does not answer that exact question but has some interesting comments to say on the issue.  Right now, some Member States may be trying to achieving two things– trying to press for changes to the substantive text before it is officially adopted and pressing for the seat of the Central Division. Professor Peers warns that Member States run the risk of appearing contradictory in pressing  "to get hold of the seat of the court while criticizing the whole project in very strong terms”.  Taking this approach, especially given the brief time Member States have with the signing is due to take place on 22 December, would be counter-productive.  If amendments to the text are too difficult to obtain at this stage, a “Plan B” may be that suggested declarations to the treaty or the legislation are made:  "The clauses on review of the legislation or the treaty (or at least a declaration on review) could address some controversial issue [such as Articles 6 to 8]."  For more observations and suggestions from Professor Peers see here

And, finally… The AmeriKat has received some constructive criticism that the Kat has been overly critical regarding the unified patent proposals and debates. To be certain, the AmeriKat and the Kat welcome progress in establishing a single European patent system, but not at any costs or at the risk of ruining what could be a potentially beneficial and user-friendly system. And, in the words of many a Kat mom: “I nag because I care…”

26 comments:

Gibus said...

Once again I'm stuck with the proposal to remove arts 6-8 from the unitary patent regulation.

Do proponents of this removal think that issues concerning substantive patent law for classical EPO European patents (without unitary effects) can really not be referred to ECJ?

It could be interesting to re-read the ECJ Opinion 1/09 of March 8th 2011, and have in mind that unitary patent are a genuine EU right.

And re-read also the leaked opinion from the General Advocates. There is one item in the AG's opinion that is often forgotten: administrative decisions of EPO (by its internal Boards of Appeal) shall be subject to a recourse before an independent jurisdiction.

drdeanos said...

Annsley I am not sure if you are being sarcastic concerning France's involvement in the EU, but I think M Bariner when speaking about the two large countries who are holding up the settlement of these issues was referring to Germany and the UK (as you pointed out) and he attempting to make the point that even though both these nations would like the new court to be in their own countries, in the interests of the EU they may need to accept that it has to come to Paris.

Anonymous said...

And why would Paris be in the interests of the EU?

It is favoured in the UK over Germany due to location, access by Eurostar, nice city, etc, but I'm not sure that being central is a good enough reason. Great for Luxembourg, obviously, but not so fair on Donegal, Uppsala, Naples, etc?

MaxDrei said...

It might be self-evident to drdeanos that the interests of the EU dictate that the court "has to" be in Paris, but it isn't to me. Can he say why it has to be in Paris? That otherwise there will be no agreement is not a good enough reason, by the way.

Not that any EU State is a blackmailer. Heaven forfend. But, as Peers explains, hold-outs will just hold out all the more, if holding out gets them what they want (like the Central Division in Milan).

Anonymous said...

Can he say why it has to be in Paris?

I'm not drdeanos, but I can think of two main reasons.

Firstly, it's as well connected and cosmopolitan as London. For most Europeans it's arguably easier to travel to Paris than to London, thanks to the Schengen Treaty. It has a direct high-speed train line to Luxembourg, too. And it's of course definitely better connected than Munich.

But the second reason probably is the most important: it is currently not such an important hub of patent law as London or Munich. If either London or Munich got the seat, it would cement that city's dominance over the whole European patent profession, something that the "winning" country would certainly appreciate, but the other 24 participating states distinctly less so. Paris, on the other hand, will not dominate the profession in quite the same way.

Of course, the same two arguments could be made in favour of other alternative seats, and in particular Amsterdam or The Hague, or even, in Germany, Frankfurt.

The talk in the grapevine is indeed that Holland has already come forward (as well as Hungary, apparently, but that looks less likely to succeed in my opinion).

drdeanos said...

Further to my previous comment, I did not mean to imply that Paris was the only choice of venue, but if the selection comes down to one of London, Munich or Paris which is one interpretation of the rumours circulating on this topic (as well as taking into account the inherent bias due to the proposed official languages of the yet to be finalised EU patent), I would say it would clearly be in the interests of only the German or UK professions to have the new unified court in their territory, but as indicated above, this would not be to the benefit of any country other than Germany or the UK.

Obviously if the court came to Paris this would also boost the French profession, but I would consider it less likely to have a further detrimental effect on the profession in Ireland, Sweden or Italy than if it went to London or Munich.

My reasoning is that if the court were to be situated in Munich we would likely see a gradual reduction in our profession outside of Germany as why would any sensible non-eu applicant decide to prosecute with someone not placed next door to the two most important patent institutions in Europe? Similar arguments also exist with respect to London given its already prominent position as a PCT-Euro desitination of choice for lots of US and Japanese applicants.

As an alternative London, Paris and Munich I would also agree that Amsterdam isa good alternative, although I would say that the danger exists again that such a concentration of patent institutions could will more adversely affect our profession in other countries than if the court were to be situated in a country that does not have an organ of the EPO in situ or is a destination of choice for foriegn litigants.

Anonymous said...

The situation with the EPO being in Munich already has the effect of sucking work from other places, so yes, it is undesirable and unfair to increase the dominance of Munich (or Germany as a whole).

The argument against London doesn't make sense, because if London is getting a large share of available work, that must be due to the quality of service being provided or due to other reasons not due to any EU/EPO-gifted institution.

Germany as a choice will therefore reduce overall competition, whereas it would appear London is good for competition.

Paris needs to find reasons in favour of itself as a destination rather than those you have given.

Anonymous said...

The argument against London doesn't make sense, because if London is getting a large share of available work, that must be due to the quality of service being provided or due to other reasons not due to any EU/EPO-gifted institution.

Forget "quality", the only reasons are language and history. Don't believe it's because you are more clever or harder working.

Since the language regime of the unitary patent is going to further entrench the dominance of English in the European patent profession, most other countries are going to be as hostile towards further concentration in London as in Munich.

It is not just a matter of competition. The patent profession in Europe is arguably already too concentrated in too few places, leaving many countries and regions underresourced. It is both in the profession's and Europe's interest that inventors throughout the EU can find qualified advice close enough to home.

drdeanos said...

But if one accepts your argument that the only reason London gets its volume of work is due to quality (rather than or perhaps better to say because of a combination of legacy, quality and a compatibility between US and English practice), then it's unreasonable to exclude Munich as the quality of work is likewise high.

likewise if one approaches the question solely from the perspective of the interests of Applicants, it is difficult to argue that the court should be anywhere other than Munich so as to simplify and minimise the cost of obtaining and enforcing patents in the EU.

I would therefore reiterate my previous argument that if we want to continue to have a reasonably diverse profession (both geographically and in the ways that we approach our work) the court should not be in London or Munich as if it goes to either of these cities this will distort our profession in a similar way to the way the EPO in Munich already has.

Problems exist with the court being in Paris but it is less likely to have a negative effect on our profession as a whole, but this does not apply only to Paris.

Unfortunately the decision is not ours and i suppose it will be one small token in the current negotiations concerning the euro-pocalypse.

Anonymous said...

Oh dear, we have touched a nerve and identified the underlying hostility towards the UK from other EU members, haven't we?

You couldn't even get as far as finishing the first sentence of mine you have repeated:

"...or due to other reasons..."

I can imagine the dinner in Europe tonight: "You have English Mr Cameron, we shall have the prfots from your banks, your Scottish sammon, and I quite like No. 1 Bath Terrace. Hand over the keys.

If an inventor in town X, country Y cannot find a good local patent attorney, then I suggest that is the problem of country Y, NOT the UK, NOR Munich. They attract work from outside the EU and should not be able to compete with a little firm in a little town handling local work.

You are of course right regarding the language regime. The hostility should be limited to the UK becuae the language should just be English.

You nt have noticed, but German firms get a LOT of work from the US and Japan. Please explain that one as I b elieve the national language of Germany is German?

Anonymous said...

Gibus appear to be an anti-software-patent protestor (each to his own). What I don't understand is why Gibus believes an EU patent with the EPO having no control would help his cause. Based on the comments on the Gibus weblink, there is a real misunderstanding of the current law, its application by the EPO, and the power of national states to invalidate any patent.

Anonymous said...

It seems to be that because of jealousy it would not be advisable to have the seat in either of the three major countries (DE, FR, GB). A nice alternative would be The Hague because of the local presence of the EPO and the presence of major legal functions (international courts). However, a nice alternative would be Vienna, which also has a local presence of the EPO, has some connection with international IP (WIPO) and seems to be quite centrally located in Europe with good connectivity.
And please note, that I'm not Austrian or native German speaking...

drdeanos said...

Just to clarify I am an English UK/EP/FR Patent Attorney, so I have no inherent hostility to the UK and English is my mother tongue.

I also agree that it probably would be sensible for all the proceedings before the new court to be in one language which it would make sense to be English, but this doesn't mean the court then needs to be in the UK or Ireland.

I understand the attraction of making London a counter pole to Munich, but if this comes to pass I wonder what will be left of the private practice portions of our profession outside of these two locations in 10-20 years time?

Anonymous said...

It is possibly worth pointing out the the major problem with the European patent system making it uncompetitive is the cost of translations. The UK is not a contributor to this problem because the langauge used is that of the world's most important market for goods and patenting.

UK patenting costs are very low for US applicants and could be mae even lower using the patent prosecution highway or a registration system for granted US patents meeting limited criteria. Shouldn't laugh too much at this because the US are investing heavily in examiner recruitment and training and, much as attorneys in Europe might disagree, there are many high quality examiners in the US granted high quality patents.

Now that the UK is on its way out the EU it is also a good option to make us more competitve.

May I take this opportunity to wish continental Europe well on their new journey without us (the UK). It is a real shame that other EU members chose to try and extract concessions from the UK which had nothing to do with solving the Eurozone debt crisis.

Anonymous said...

I heard rumors that Spain and Italy may drop their reservations to the EU patent. I would therefore suggest enhanced cooperation with Spain and Italy, but without the UK.

According to the previous Anonymous, the UK is better off without continental Europe anyway.

Anonymous said...

there are many high quality examiners in the US granted high quality patents.

Like the one who once told me off for using "non-standard" (namely, British) spelling?

Yes, good luck with the colonials...

Anonymous said...

Anon at 2:43 - Where did I say that?

It is amazing that France and Germany believe that the UK should go along with everythin they want. it is equally amzing that every other country in Europe do go along with everything Farnace and Germany say.

The last point refers specifically to the decision made by France and Germany to reject Cameron's requirement not to tax the UKs financial services industry in order to subsidise the Eurozone's failures. No other EU member had any say on that decision - it was a simple 2 to 1 majority decision.

Anon at 3:55 - There are more ways to spell a word than UK English and if that is the only criticism you can make of US examiners then I suggest it is pretty minor.

Our old colonial nation seems to be doing very well, wouldn't you say? Better a colonial than a minor-Euro lapdog.

Anonymous said...

Spain and Italy would love some cooperation. It is most likely to be needed to quell the mass social unrest that will arise when those countries, together with Greece and Ireland, have their spending slashed by Chancellor Merkel in her new Brussels office.

The harder-working tax-payers in Germany, on the other hand, will find their quality of life increase further still as they compete in the international marketplace with an undervalued currency and control of interest rates and ECB policy that protect the German economy.

All for the good of a Greater Europe!

Anonymous said...

at least I think we may forget London as seat of the UPC after Cameron's show last night..

Anonymous said...

I think we can forget the UPC!

Cameron's show? There was only a single demand from Cameron and it didn't relate to the clawing back of any EU powers. All EU members knew the City of London's financial services industry was not up for grabs.

I am very anti-Cameron and generally pro-EU, except for the issue of federalism. However, on this occasion too much was demanded and it was so unnecessary for dealing with the issue at hand. Cameron's show was reasonable and fair and right. There was no Euroscepticism involved.

The EU are treating the UK as a patsy.

Anonymous said...

The reason for Gibus' thinking may be along the lines of this article:

http://blogs.computerworlduk.com/open-enterprise/2011/12/huge-number-of-eu-software-patents-on-the-way/index.htm

It concerns the 'flood of software patent' expected to come from a unitary patent. It believes the ECJ will sort them out because:

"One of the key issues that still seems up in the air is whether the European Court of Justice would be involved in deciding on the validity of patents. That matters, because it has shown itself quite savvy on technical matters recently, and there is a good chance that it would be much more sceptical about software patents than the EPO."

So self-interest coupled with a good dose of ignorance and you get unnecessary concerns and high blood pressure.

Anonymous said...

The Confederation of Danish Industries has purported that the introduction of the Unified Patent Court and system will create savings for Danish industry of 110 million kroner (approx. 12.6 million pounds sterling)annually. However, they most likely forget that this would be net; large industry would perhaps have savings of GBP16 million and the small industry might have extra expenses of GBP3.4 million annually. Or whatever the balance would be if you look at large corporations plastering Europe with wall-to-wall patents while small companies struggle to decide on the three or four validations that they really need.

Large industry and grass root upstarts really have diverse interests in this.

George Brock-Nannestad

the Word Verification said "subtra", and that is what I did.ct

Anonymous said...

"struggle to decide on the three or four validations that they really need"

Come on George. I'm sure you've heard of the London agreement.

Those savings look a little insignificant to bother with to me.

Anonymous said...

The court could be situated on the aircraft carrier that Britain and France are purported to be sharing. But, we will need to be wary of the Italian submarine court.

Cosmictrout said...

I wrote to my MEPs to express concern about this, and this was the response - I suggest any other readers contact the Legal Affairs Committee as suggested..?

"Thank you for your e-mail.

The decision on the Unified Patent Court is being taken solely by the Member States, as it will be created by an agreement amongst the contracting parties rather than by EU legislation. This follows on from the opinion of the Court of Justice that the previous proposal did not comply with EU law.

Therefore, at present there is little the European Parliament can do other than prepare an own-initiative report on the part of the patent package you mention. The own-initiative report is being prepared in the Legal Affairs Committee so may I please suggest you contact Sajjad Karim MEP who is the Conservative Legal Affairs Spokesman in the European Parliament. Mr Karim can be contacted on the following e-mail - sajjad.karim@europarl.europa.eu

In terms of the location of the organs of the Court, the draft agreement made no reference to specific countries and this remains an item for negotiation amongst the Member States. The Central Division is the one that the UK has been bidding for strongly, and the location of this has still to be decided. In light of this you may like to contact the UK´s Foreign and Commonwealth Office (FCO) for an update on negotiations using the following link: http://www.fco.gov.uk/en/contact-us

I will of course monitor this situation closely.

Please do not hesitate to contact me again.

Kind regards

Marina Yannakoudakis MEP, Conservative, London region "

Anonymous said...

That's a very cosmopolitan name for a Tory MEP in a xenophobic, little Englander, Eurosceptic nation. Must be a mistake in one of these facts.

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