|What the AmeriKat wished she could have |
been doing on her couch on Tuesday...and
indeed as she types (zzzzz)
|Chair of JURI - MEP Lehne|
However, the main debate occurred 90 minutes later (fast forward to the 11:37 minute mark). Mr. Rapkay in a fiery, if rambling, speech expressed his dismay at the EU Council's previous Friday agreement. He stated
"I think there are some very questionable issues looking at what's happened and I think it goes far beyond the patent issue. So the first point is the subject mater. I think that the Secretariat sent all the members the first opinion from our Legal Service, so you are all aware of that. In the conclusion its quite clear that in 22(c)…. deleting the three articles is not compatible with EU law because it means that its not compatible with Article 118….If we delete the three articles we no longer have the right legal basis, because the legal basis states that we must have a patent with harmonized protection...It is quite interesting, in fact its not interesting at all, that the decision of the Heads of State of Government was not factual at all it was just horse trading. . . [and] Luckily, there weren't any further member states [vying for a branch of the Central Division] otherwise we would have 8 seats [of the Central Division]."So, yes IPKat readers, we finally have seen the Parliament's Legal Services Opinion (but due problems wiht Google Docs and a currently unavailable European Parliament website you will have to wait until tomorrow to find it, unless you e-mail the AmeriKat). We are now awaiting the Commission's and Council's Legal Opinions.
Mr. Rapkay continued stating that the need for the inclusion of Articles 6 to 8 in the Proposed Regulation in order to be compliant with Article 118 TFEU was not controversial.
"If you remember, the discussions we had...before, [this] wasn't controversial between Council and Parliament. So its not a factual position its just horse trading [undertaken by the Council on 28 to 29 June 2012]."Obviously feeling violated by the EU Council's agreement, Mr. Rapkay continued his submissions about the interference by the Council in the legislative process of Parliament and again referred to the Parliament's Legal Services Opinion on Articles 6 to 8. He stated:
Cecila Wickström took the floor. Readers may recall that in December she was initially vocal on her support for the removal of Articles 6 - 8 and a call for the disclosure of the Legal Opinion on the why the inclusion was necessary. She eloquently stated:
|MEP de Grandes Pascual|
"irregularities and inconsistencies in the whole procedure which we have denounced and want to take to the Court of Justice. Other languages are being left aside, such as Spanish which represent millions of people so we are not going to shed crocodile tears at this point."MEP Raffaele Baldassarre, the rapporteur for the language portion of the unitary patent package, commented that he agreed that the Council had no competence or right to interfere with the legislature, especially given that an agreement had been reached on the unitary patent proposals under the Polish Presidency.
"So quite frankly the intervention we have seen in the last few days has no legal basis. Neverthless we have to find a solution. The main concern is that European law should be respected and that there should be a clear and transparent procedure which is in the hands of Parliament and the Council of Ministers.. . Companies and industry at large would very much like to see a unitary patent to see the light of day, moving away from all the personal interests at stake. A lot of amendments were lost during the amendment stage but we did find an agreement and its our duty to find a point of agreement following the intervention which challenges the three articles. . . I don’t think this is a time to discuss the language. If 90% of Italian companies are presenting applications in English then the language issue is not a problem…"Mr. Lehne addressing Mr. Christian Pennera, the representative from the Parliament's Legal Service, explained that he had spoken with British experts who told him that the inclusion of Article 3 of the Proposed Regulation as enough to satisfy Article 118. Mr. Pennera stated that
" ….Well we can always be more and more minimalist. The absolute minimum is to say nothing at all. This is a 25-26 page act. Stop at 3? Well, I don’t really thing that’s the point. Maybe someone else could say we can stop at 4, or stop at 9 or 10. If you withdraw [Articles] 6 to 8, then you withdraw all legal control of this issue and you take away the unitary value of the patent."The representative from the Commission added nothing of substance, merely to say that the institutions needed to fully cooperate to meet the target of granting the first unitary patent by April 2014 and that the Commission was ready to assist Council and Parliament to deal with all outstanding issues.
Mr. Rapkay fixated on this lacklustre statement and called for more conviction "for their own proposals from the Commission". In what will forever be known as his "We are the Parliament" speech Mr. Rapkay continued:
"We are the Parliament. We are the Parliament. We are the only ones that have been directly elected… The legitimate law makers are the Council, not patent lawyers. It is not up to the patent lawyers to come up with the law. I have received a lot of e-mails from those who want to delete Articles 6 - 8 and e-mails form others who are warning against that. In Article 118 we have to have a unitary patent with uniform protection and that would not happen if we were to delete those articles. Our task as the Parliament is to take a political decision. . . " ["But if I have followed this correctly, only first after a legal position, right…?", asks the AmeriKat]
|MEP Sajjad Karim|
"Firstly, in relation to Articles 6- 8, I personally have no difficulty with those provisions being excluded. I certainly don't regard a system of referrals to the CJEU based on sort of delays with current workload being appropriate, especially when we have a specialized system [such as the proposed unitary patent system]. I share the frustration of colleagues that have been expressed to the number of seats available and the whole of language issues. Ultimately Chairman, this is Europe and we are doing what we have always done. We have taken something incredibly sensible and then undo it by one means or another and come up with a system that our citizens will look at and say "What on Earth have we done?". We might as well come forward and have said we will have one seat in Munich where they will speak English, one in Paris where they will speak German, and one seat in London where they will speak French and there will be an underlying language where they are can come forward and speak in Spanish."In the final moments of the session, the new Cypriot Presidency stated that Europe simply could not lose the opportunity to finalize the unitary patent proposals (a comment the Amerikat agrees with), because once lost the momentum would be very difficult to regain. The Presidency called for everyone to use the Summer months to reflect on the issues and to prepare further legal opinions on Articles 6 to 8 for discussion in September. Following some final threatening comments from Mr. Rapkay that any lack of a unitary patent would be the "Council's fault and no one else's" and that they already had an agreement from December which they should adhere to, Mr. Lehne reiterated the Presidency's comments that everyone should "think about it" these issues over the summer.
|No summer sun for the Legal|
Services it seems?
(or us in the UK)
So what will happen in September? Either, the Summer recess could find Parliament in a fiercely good mood and ready to once again push through the proposals with Articles 6 to 8 included, or the Commission could withdraw the proposals arguing that the proposals are sufficiently denatured (unlikely and dubious), or Parliament could just vote against the deal (unlikely, because if anything we know Brussels would like an easy political win given the current climate ) or we could go back to the start and try again with negotiations on the text. If the AmeriKat was a betting Kat, she would bet that the first possibility will occur.
|The IPO. . . .|
In the meantime, the AmeriKat looks forward to seeing you at Friday's unitary patent debate (more details to attendees soon).