United we stand, divided we fall, enhanced we ... er ... cooperate

Dreaming of a unitary patent:
but will enhanced cooperation
be a nightmare?
Just in case some of you have not yet experienced your first bout of Unitary Patent Fatigue Syndrome, here's some more material for you to digest.  It's a media release from the European Commission, "Patents: Commission opens the way for some Member States to move forward on a unitary patent", dated 14 December.  It reads, in relevant part:
"Today the European Commission presented a proposal opening the way for "enhanced cooperation" to create unitary patent protection in the EU. Such unitary patent protection would allow those Member States that so desired to agree to establish a patent, valid in all participating countries, that could be obtained with a single application. ...[A]s the EU's Council of Ministers has not been able to agree unanimously on the EU patents' language requirements, the Commission has now tabled a proposal opening the way for "enhanced cooperation" to be authorised in this area, in accordance with the EU Treaties. ...

Today's proposal follows a request from 12 Member States (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Sweden and the United Kingdom [No Belgium?]). It would be the second time that the "enhanced cooperation mechanism" were used (see IP/10/347) and would allow some Member States to move forward immediately, leaving the possibility to others to join at a later stage [Assuming that they should wish to do so; but governments of Member States that foster very little domestic innovative activity of their own and are merely a patch of ground over which foreign businesses exercise monopolies, may face little internal pressure to join up and may see some political benefits in staying out]. The proposed decision to authorise enhanced cooperation on unitary patent protection needs to be approved by the EU's Council of Ministers by qualified majority, after the consent of the European Parliament. The Commission will come forward in 2011 with detailed proposals for implementing enhanced cooperation for unitary patent protection, including translation requirements.

Following the negotiations led by the Belgian Presidency of the EU's Council of Ministers, the detailed proposal on translation requirements would build on the existing language regime of the EPO at competitive costs. The unitary patent would be examined and granted in one of the existing official languages of the EPO - English, French or German.

In order to facilitate access to a unitary patent, it should be made available to all applicants in the EU [and, the Kat believes, non-EU applicants too if they're from Paris Convention countries] on a non-discriminatory basis. Their inventions would be protected in all EU countries participating under the enhanced cooperation. Applicants in the EU whose language was not English, French or German would have the option to file applications in any other official language of the European Union [but not Welsh: that language has equal status with English for public life in Wales, where the Intellectual Property Office is based, but it is not an official language of the EU]. The costs for translation into one of the official languages of the EPO (to be chosen from English, French or German by the applicant when they file the application) would be eligible for compensation. ...

Under the EU Treaty and the Treaty on the Functioning of the EU, enhanced cooperation allows nine or more countries to move forward on in a particular area as a last resort if no agreement can be reached by the EU as a whole within a reasonable period. Other Member States can opt to join at any stage before or after enhanced cooperation has been launched.

More information here".
The IPKat somehow thinks that, once the pressure for a real unitary patent is eased by "enhanced cooperation", the two-tier phase will become permanent pretty quickly and will be all the more difficult to shift.  He would have preferred persisting with the usual negotiations, without the regular imposition of childish and arbitrary "last chance" deadlines, and keeping the single patent for all EU territory as the sole acceptable aim.
United we stand, divided we fall, enhanced we ... er ... cooperate United we stand, divided we fall, enhanced we ... er ... cooperate Reviewed by Jeremy on Thursday, December 16, 2010 Rating: 5


  1. Not only will the EU have to open the patent route to PC member countries, the provisions of TRIPS will almost certainly mean that it has to be opened to all WTO member countries.

    I don't agree with Jeremy's comment that the two-tier phase will become permanent. It's clear that at least two countries will never agree at present to a single patent regime. However, once a system is set up, I suspect that the pressure by local industry to join may lead them to support the system in the end. Who thought that the French would end up supporting the London Agreement. A window of opportunity was found and the Agreement entered into force - to the suprise of a number of French patent attorneys who lost their valuable translation business.

  2. Apparently, Belgium doesn't want to join the "enhanced cooperation" group while it is still holding the rotating presidency to avoid an appearance of partiality (not that the Spanish and Italian delegations have ever thought that the Belgians are impartial in this matter). Also, you may have noticed that Belgium is at the cusp of some quite important language-related negotiations of its own: joining at this moment a group that is going to adopt French, but not Dutch, as one of the languages of the unitary-patent-to-be, may have been the little disturbance to take apart the delicate political Belgian lace.
    I agree with Mr. Harrison: for all its present protestations, I can assure you that the Spanish government had no intention whatsoever of negotiating, and would have been happy to drag this on for a few more decades. When Mr. van Quickenborne pointed out last November that "one delegation had no intention, or mandate, to negotiate", he pretty much hit the nail on the head.
    And, like Mr. Harrison, I also think that all countries will end up joining the enhanced cooperation group: currently 12 have already joined, 11 have expressed their support and 2 are sitting on the fence. Only Spain and Italy are openly opposed (and Italy wavers quite a bit). When it gets going, I predict that Spain and Italy will end up joining quite quickly, not just because of the pressure from industry (which will be tepid at most), but also that from large local law firms afraid of being cut out of the big unitary patent litigation cake. Also, from Britain it may be easy to underestimate the strength of pro-European feeling in those countries and how being left out of a European project will be felt as a humiliation...

  3. The full text of the Commission draft has been published at http://ec.europa.eu/internal_market/indprop/docs/patent/COM(2010)790-final_en.pdf.

    It appears that the mini-EU-patent will only apply to 12 states, so that the name "The Community Patent Minus A Few" is clearly wrong.

    The Commission's arguments in favour of the draft are clearly flawed, as they apply in case of an EU patent for 27 states, but do not apply to a mini-EU-patent that only applies to 12 states.

    The need to await ratifications for a litigation treaty are obviously smaller if only 12 ratifications are needed, but still: the Community Patent Conventions of 1975 and 1989 failed because it was too difficult to collect 9 and 12 ratifications, respectively. Denmark is among the 12 states, and it needs a 5/6th majority in its parliament before it can ratify the litigation treaty.

    In sum, the proposed system is too little and too late to be meaningful for the Europe 2020 objectives.

    We need a revised set-up that is much less complex in that it can enter into force without having to await ratifications of a litigation treaty by all participating states, and that just fulfils users' needs as regards a one-stop-shop post-grant administration.

  4. It appears that the mini-EU-patent will only apply to 12 states, so that the name "The Community Patent Minus A Few" is clearly wrong.

    No. The group was of merely 7 just one month ago, it has then grown to 10, 11 and now 12. I don't see why it shouldn't keep growing in the following few weeks, especially as 11 others have already expressed their support. By next spring it will presumably be 23-25 strong.

  5. Well, if the group is 23-35 strong, we will have to await ratifications of the litigation treaty by all of these 23-25 states until the system can start. Note that Ireland needs a referendum before it can ratify the litigation treaty.

    Let's hope that the system can still contribute to the Europe 2060 objectives.

  6. We'll see if there'll be a litigation treaty. Note that the EU has very purposely uncoupled the two aspects...

  7. 12 Member States have made the formal request to start enhanced cooperation but others can decide to participate before the formal approval of the decision to authorise enhanced cooperation, or join enhanced coooperation in progress. In the case of Rome III several countries decided to participate after the first (smaller) group of States requested enhanced cooperation, and the Comission proposed the authorisation of enhanced cooperation.

    If you look at the live Council debate Greece, Ireland and Austria all stated unequivocal support for enhanced cooperation as regards the patent and so one can certainly expect them to participate as well at the very least.

    The Commission proposal, as I read it, is silent on the whole patent litigation treaty issue and does not expressly mention EU membership of the EPC (unless I missed something). Can someone say whether the whole project is legally or practically viable without those two elements? These are of course the two points where Spain and Italy could block the whole thing from going ahead regardless. (They could also launch a legal challenge to the validity of the enhanced cooperation decision - this would of course have to be successful to stop it going ahead). Could the litigation treaty go ahead with only some EU states (with perhaps only some non-EU EPC states)?

    I don't see how the argument for the patent related to 27 Member States falls apart if applied to 12 (or 15, or 23-25) only. The Commission is basically running the 'half a loaf is better than none' argument - ie it would be ideal for the internal market if all 27 States participated, but in the absence of that the participation of 12, 15, etc Member States will still help the internal market more than if no unitary patent got launched at all. If that argument is prima facie unacceptable then the enhanced cooperation provisions can never be used - which is surely an untenable interpretation of the intention of the drafters of the Treaty.

  8. In response to: "Can someone say whether the whole project is legally or practically viable without those two elements?", i.e. EPC amendment (1) and patent litigation (2).

    1. An EPC amendment can be left out, and is preferably left out.
    - Articles 142-149 EPC were designed to allow the Community to have its Community patent administered by the EPO. It is thus in line with the very object and purpose of these EPC articles (which object and purpose are relevant in interpreting the EPC in view of customary international law as codified in Article 31(1) of the Vienna Convention on the Law of Treaties) to now allow the EU to have its EU patent administered by the EPO. The EPC is not written or able to prescribe the EU how the EU has to frame its EU legislation, and it is thus irrelevant that the EPC drafters had a Community Patent Convention in mind rather than an EU Patent Regulation.
    - The EPC is preferably not amended as this would indeed require the cooperation of all 38 EPC states, including Spain and Italy. Moreover, if some EPC states ratify the EPC amendment treaty late (e.g. because of discomfort with certain aspects of the EU patent system), they cease to be EPC states, which would really hurt users of the European patent system. Also, it would be detrimental to quality and uniformity of the European patent system if the EPC Centralisation Protocol were undermined, and history since 2000 has shown that some EU states want to seize the opportunity of an EPC amendment in the framework of the EU patent to shift EPO work to their national patent offices, while not all national offices are able to provide the same quality as the EPO.

    2. Whether the EU patent system can start without first having a litigation treaty like the draft EEUPC Agreement in force depends on the legal basis used for the EU patent system.
    - If the EU patent system is based on Article 118 TFEU in combination with the provisions on enhanced cooperation, the result is a single patent for the joint territory formed by the enhanced cooperation states, and we then first need a court able to issue decisions on validity and infringement for the very same joint territory. This means that we have to wait until all states that join the enhanced cooperation have ratified the litigation treaty. The more states join, the longer it takes, especially if the ratification process faces hurdles like a need for a referendum or a need for a 5/6th majority in parliament. So, the system will be too late to contribute to achieving the Europe 2020 objectives.
    - If the EU patent system is based on Article 114 TFEU, the result is a harmonisation of national laws on granted EP patents. The result is still a bundle patent, albeit centrally administered by the EPO to provide the very same one-stop-shop advantages as a single patent based on Article 118 TFEU. Because an EU patent system based on Article 114 TFEU still results in a bundle patent, it is possible to continue to rely on Regulation 44/2001 to allow the national courts of states not (yet) having joined a common court to issue decisions valid for their own country only, as a transitional measure. So, we could then have an EU patent system up and running as early as 2012, well in time to be able to contribute to achieving the Europe 2020 objectives.

  9. Thanks to Anonymous for that clarification. Re a) it seems from the Commission's enhanced cooperation proposal that this (the use of Art 142 etc EPC) is the route they are going down, although they don't make this absolutely clear, and many MS at the Council meeting on Dec. 10 seemed to support enhanced cooperation only on the basis of sticking to the Dec. 2009 conclusions, which included EU accession to the EPC (perhaps they also had in mind the further EPC amendments you mention....). Why was EU accession to the EPC such a big deal in the first place, if it was not really necessary for the Community patent in light of Part IX? Presumably also this intended use of Part IX is why the enhanced cooperation proposal refers to a 'unitary patent', ie to match the wording of art 142 EPC. The possibility of Spain and Italy to block the whole process via this route was exactly what I was thinking of.

    Re b) the Commission proposal for enhanced cooperation does not seem to be contemplating the second option, ie the use of art 114. Is that requirement of a common court a legal or a practical requirement? Would it be at all practically feasible to have the unitary patent (ie the enhanced cooperation system) running on a transitional basis before the litigation treaty is in force? At least there would be the advantage of lower translation costs. Also given that the patent litigation treaty is meant to apply to all EPC states and all apply to EPC patents as well will all of them have to ratify, ie giving Spain and Italy another chance at a backdoor veto? Would it be possible that the treaty can come into force on a rolling basis, ie as each state ratifies it, after a minimum of 3 or 5 states etc? That way it could start contributing to lowering litigation costs, etc at least among the states which have ratified it. Perhaps it could only apply to EPC litigation in the meantime if the unitary patent is not made applicable until all participating states have ratified the litigation treaty - at least that satisfies some of the simplification objectives in the meantime.

  10. Italy and Spain would have joined the system if the only language adopted would have been English. Was it worth to divide Europe just to make a favour to German and French companies?

    With the increasing number of applications from China, India and Korea, the number of applications drafted in German ist becoming stepweise less significant. Currently they amount to less then 10 % of the PCT application filed every year; this number will surely decrease in the next years

  11. Italy and Spain would have joined the system if the only language adopted would have been English. Was it worth to divide Europe just to make a favour to German and French companies?

    Allow me to express my utter scepticism on this matter (and I'm Spanish). The "English-only" option would only have been feasible if either:

    a) the EU patent would have been a parallel system to the existing European patent, which nobody wanted; or
    b) Art. 14 (1) of the European Patent Convention had been amended, and the whole European Patent Organisation reorganised, which would have taken years.

    The "English-only" proposal was a spoiling option, by which the Spanish and Italian delegations merely sought to divide their opponents and achieve their ultimate goal, which was to maintain the status quo with respect to post-grant translations. It failed and was exposed as a cynical ploy.

    Spain and Italy would have been on a more solid moral platform to push for the "English-only" option if they had previously joined the London Agreement. But they didn't, because making things easier for patentees (foreign or homegrown) was never their goal.

  12. A couple more points - a) I see art 63.2 of the agreed text of the EC patent provided that applications for the EC patent could only be made once the EU joined the EPC and the patent litigation treaty was in force. But if the condition regarding accession to the EPC will presumably be dropped, could the condition relating to the patent litigation treaty be dropped too? Then again the recitals to the EU patent regulation and the provisions on compulsory licensing refer to EPC membership and the patent litigation court too...

    b) enhanced cooperation cannot be used for matters within the exclusive competence of the EU. Could this cause a problem as regards using enhanced cooperation as regards the patent ligitation treaty, because in part it concerns issues relating to civil jurisdiction, which fall within EU exclusive competence due to the nature of the Brussels Regulation rules? (see Opinion 1/2003 along with Art 3.2 TFEU)


All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.

It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.

Learn more here: http://ipkitten.blogspot.com/p/want-to-complain.html

Powered by Blogger.