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.

Monday, 10 December 2012

European Council endorses unitary patent package

The AmeriKat, with her head in her paws,
braces for the beginning of the end
As expected, this afternoon the European Council has provided its political endorsement on the unitary patent package. The public "debate", which lasted a mere thirty minutes, was opened by the Cypriot Presidency who after the usual round of congratulation and self-congratulation of the present and past presidencies' work, enthusiastically stated that the unitary patent package was was what European industry needed to be competitive on a global level. Speaking of the "delicate compromises" that were obtained to reach this moment, the representative stated:
"We are all aware of the criticism voiced by interested parties about the final text. However, we should not let the perfect become the enemy of the good. I can assure you the text has gone through legal scrutiny and will ensure the uniform application with out undermining the rule of the Court of Justice."
He continued stating that the time had come for the politicians to agree and then pass the package over to the practitioners to implement and use the system ["Can't hardly wait", growls Merpel].

The floor was then taken by Commissioner Barnier who after thanking everyone and all the presidencies who worked on the dosssier ["Yes, you all have done just a tip-top job…", hisses Merpel], stated that the decision was
"…landmark in the building of Europe…This is a historical decision because it does allow for a new stage to be completed in the establishment of the internal market in creating a single patent at an affordable price….In 2010, I said that I was going to be the last Commissioner to work on this dossier and I hope together, that I will be able to realize that wish."
Commissioner Barnier
Commissioner Barnier then rubbed all the Kats fur backwards when he compared the current system of patent grant with that of China and US. He justified the need for the unitary patent package by stating that the US has issued 3 times more patents than Europe and China 2 times. To compete with the US and China, it was necessary that the unitary patent package be passed. Again, the AmeriKat is confounded as to how European politicians are able to state that the number of granted patents is directly proportional to the innovation of a country/jurisdiction, when we all know it is not.

Commissioner Barnier then expounded on the four major advantages of the system. The first, being "a new tool in the toolbox for innovative companies in Europe to strengthen innovative strategy and capacity". The second, being a one-stop-shop at an affordable price ["Again, where are they getting these figures from?", asks the AmeriKat]. The third, being more legal certainty and, the AmeriKat swears this is what the translation said, "the cost of defence being much less and much reduced". The fourth major advantage was slightly confusing but related to the dissemination of information in all languages and the availability of machine translation available in all languages of the EU, with compensation schemes for SMEs.

Like the Cypriot Presidency, Commissioner Barnier stated that he would have also preferred that all 27 Member States sign up to the agreement but that he "sincerely hoped" that Italy and Spain will join imminently. He closed his speech by stating that with the unitary patent package there was a "message of hope" that in a situation where Europe is facing crisis, the EU will be able to protect itself, its companies and its workers. The system is "not ideal or perfect, but what we have today will make a real difference" and will have a positive impact on companies who innovate.

The Presidency, opening the floor to the debate, warned the Council members that "today was not the time or place to re-discuss the patent text". Sweden was the first to take the floor. Congratulating the Cypriot Presidency, the Swedish delegation endorsed the agreement on the entire package stating that Sweden is "convinced [that the package] will be a substantial improvement on the current fragmented system".

 Is the unitary patent package's
next stop German constitutional
scrutiny? 
Similar sentiments were expressed by the Dutch and Hungarian members who heralded the agreement as "a great day for innovation". The German contingent welcomed the document submitted to Council today from the Presidency (what document?):

"Now after many years of intensive negotiation all the pieces of the package are now being approved by Council. The European Union is an important focus for innovation and we are in competition with other economic powers and we urgently need the unitary patent protection and a court and I am glad to see that there is this willingness to reform. We would like to thank your presidency and all previous presidencies who have taken forward this matter. It is particularly important that we agree on the Court and here I would like to give a statement for the minutes . . .Germany understands what it says in Article 33a about evidence, the idea being that if farmers have not grown the seed subject to patent, normally speaking, claims could not be made against them in respect of the patent. Further, back in Germany the usual constitution examination has to be done and we wont be able to do this before 18 February 2013 but will do so as quickly as possible."
France "welcomed the historical decision" stating that the new system would be advantageous for companies and would reduce the cost of patents and simplify the administrative procedure". Greece called today "an important milestone" which would "allow [the EU] to support innovation in the EU and boost competitiveness of industry." Following further positive statements from the Danish and Slovenian representatives the Polish representative stroke the first and only note of discord stating that:

"Colleagues, I would like to tell you that patent package has been subject to public debate in Poland and there are serious reservations connected to this package because of certain negative opinions presented to the national government from national stakeholders regarding the patent package. In particular there are some misgivings by the Polish Parliament. There is a public debate underway in Poland and it is very difficult. We cannot foresee the evolution. We cannot predict what will happen next. We would still thank [Commissioner Barnier] and the Presidency for the work in this respect."
The Portuguese contingent expressed its sentiments that today was " a very good day for innovation in Europe" and, in closing, the Czech Republic stated that "the adoption of the patent package is a milestone for innovation and competitiveness in Europe."

So where was the UK representative? Good question….
White fairy cake never tasted so bitter

In closing, the Presidency stated that the Council gave its political endorsement on the unitary package, subject to the usual final review of the text by the legal linguists.

Although expected, the AmeriKat could nevertheless feel her cheeks burning that members of the Competitiveness Council could so easily and willingly endorse a package that has the potential of making the patent system more complicated and expensive for its users while potentially chilling innovation as a result.

Attention now turns to tomorrow's European Parliament session (see AmeriKat post here). Although, rumor has it that there is another Parliamentary vote this afternoon as to whether to postpone tomorrow's vote, the AmeriKat cannot find any evidence in the agenda to support this, so would be grateful if readers have any intel that they can share.

12 comments:

Anonymous said...

They are reusing the legal basis of the Compat, it won't work that way.

The art118 was designed for the Community Patent, not for this European Patent legal hacking.

Uncle Remus said...

"De Tar-Baby don't say nothin', and Brer Fox, he wink his eye slow, and he lay low. "Is you deaf?" says Brer Rabbit.."

Anonymous said...

European Parliament is now ready for the collective suicide as a patent legislator.

Tufty the Cat said...

Europe becomes more and more like the world of Atlas Shrugged every year. Very depressing.

Anonymous said...

I would also like to congratulate the congratulators for their wonderful effervescent ass-licking congratulations of themsleves.

Where was the UK rep you ask? do you mean today or throughout the whole shambolic processs?

Of course, there will be legal certainty - the certainty that no-one will be able to obtain certainty on an infringement position with a reasonable timeframe. I can't wait for the first decision by the ECJEUJCUEU lala land, but it will be long after my ashes are launched into space, wot wiv all those spc referral bungin' up the Q like!

Anonymous said...

It seems that Poland finally came to senses. Polish government upon protests from all over the country will have no choice but to withdraw from the project.

Anonymous said...

Have we finally evolved into the Democratic People's Republic of European States (DEPRESS for short)?

Anonymous said...

G&Ts all round ! At least we can all drown our sorrows, nurse our hangovers, and seek tax havens before our clients start to ask us why we are charging them more than 5000 Euros for the whole of their European Patent grant procedure !! Shurely shome mishstake ?

Lord Ignominious

Antonio Pizzoli said...

The opinion of AG Bot on Joined Cases C‑274/11 and C‑295/11 is now available here:

http://curia.europa.eu/juris/document/document.jsf?doclang=EN&text=&pageIndex=1&part=1&mode=req&docid=131666&occ=first&dir=&cid=543902

Anonymous said...

Seriously, what a sorry bunch of whiners.

With all due respect, Dear AmeriKat: First you complained about London not getting the seat of the Central Division of the UPC. It got at least the pharma cases. Then you complained about Arts. 6-8. Which were then duly binned. What are you now complaining about?!
That European patents will ultimately be litigated at a single court system, rather than offering a grabbag of alternative fora for patent trolls? Or that translation costs will indeed be slashed?

Of course what we are getting is far from perfect, which is quite normal when there are dozens of different interests pulling in each direction. Of course the legislative process has been a shambles. That's usually the case, in Europe and elsewhere. And of course the self-congratulations of ministers, commissioners and MEPs are obnoxious: they are politicians after all.

But quite frankly: the sniping does also get tiring after a while.

Peter Lustig said...

No need to worry. Even if the patent regulation is now adopted by the European Parliament, the court agreement will need to go through the UK, German and French Parliaments. If one of the three rejects it, the whole story will be over - with a maximum damage to the European legislator. I have a strong belief that at least the UK Parliament will not be willing to accept such defective legislation. So the real story is only about to start.

ex-examiner said...

Politicians don't really like facts, especially those which contradict the holy writ of policy. They therefore tend to ignore or misrepresent any inconvenient facts. People like patetn attorneys whobib are used to decisons being made on the basis of weighing up evidence, sometimes fail to appreciate that politicians do not usually operate in this way.

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