LIVE UPDATE: Delayed agreement on unified patent due to reservations on location of Central Division

The AmeriKat's eyes now studied on a Monday
evening of European patent debate
Good evening, from the AmeriKat! According to the latest Competitive Council’s press conference, which took place moments ago, an agreement on the substantive issues of the unitary patent protection and unified patent court have mostly been reached. However, two unnamed Member States have refused to agree to  the entire package over a dispute as to the location of the seat of the Central Court ("Really, is that the only issue?" asks the AmeriKat in disbelief, "I bet there are more issues of dispute except for that one..") The Council hopes to reach an agreement on the seat of the Central Court and to finalize the proposals over the next two days.  

In the press conference Chair of the Competitiveness Council, Mr.Waldemar Pawlak (Deputy Prime Minister and Minister of Economy for Poland) said this (again, the AmeriKat was transcribing live, so there may be some errors):

Polish Deputy Prime Minister
Waldermar Pawlak speaking this evening
"Ladies and gentleman, we have achieved an agreement regarding the substantive issues. The Polish Presidency presented a compromised position – a balanced position - which I believe has been accepted on substance. We discussed the fees, the language of the Court, and the transitional period as well as the Revision clause. We also have in the proposal the structure of the institution. So, basically almost everything has been accepted with one exception, however, which is the seat of the Central Court. On this issue, I believe, a compromise will still be possible and the Polish Presidency has reserved the Royal Castle in Warsaw for the initialing of the agreement. We have already an agreement with the Parliament regarding patent issues and as regards the issues of substance – everything pretty much has been agreed. What is left still to decide is the symbolic part of it. But I am hopeful that we can do it and that the Member States which, as of today as we said in the meeting, cannot accept the entire package complete with the decision on the seat of the court, well, we hope that these countries achieve or work out a solution that we shall be able to finalize the deal still under the Polish Presidency. 
Because as I say the substance has been agreed what is left still to do decide is the symbolic part of the agreement and I am hopeful we can do it still in the course of this year because that would be an important stimulus for the common market as it would create a single patent area for 500 million consumers. That is something that is very important in particular for small and medium enterprises because it would lower the price of the patents and therefore would raise the competitiveness of the EU. This would also be important in the context of the solutions that we have elaborated from small and medium enterprises who would be able to easier use the services of the courts in the case of patent disputes. But as I said two delegations at least were not able to fully approve the agreement or the compromised proposal that we presented. Basically what they could not agree on was the seat of the Central Court."
Commissioner for the Internal Market and Services, Michel Barnier also stated 

Commissioner Barnier speaking during tonight's
press conference
"European businesses, research laboratories, research centers have been waiting for 20 years now to have a unified patent which would be at a competitive price compared to the same protection in the U.S. That shows what an important topic it is that we discussed today. It is also why we need to take a gradual approach. I said to the ministers today that we are almost at the finishing line now and it has been a very long race. As we need a few more days before we can cross the finishing line I would like to thank the Polish Vice Prime Minister, Mr. Plawlak, for the work he has done – the intense work – over the last few weeks with all of his team. Of course working on the achievements on the Belgian and Hungarian Presidency, so for a year now the presidencies have been working together. . .We have been working on this for a year and we have achieved some very important progress because the protection text has been agreed. But now we are working on the patent text and businesses of course need this text and we are really just fine tuning these measures now over the next few days so that on 22 December we are able to official sign this text and show what important headway has been made. 
Of course countries which still have reservations today – very large European countries with millions of business – 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 for our businesses and the competitiveness of Europe so I am sure that they will make the final effort to cross the finishing line and the Vice Prime Minister and his team will be able to achieve this agreement. It will just take a few more days and the Commission will of course continue to support the Presidency to do that."
Again, we do not know the final form of the compromised agreement put forward by the Polish Presidency that was agreed by the Council.  If it is anything like what we believe to be the latest draft of the Proposed Regulation, this may not bode well.  One can only hope that over the next few days those two Member States, whoever they are, will stick to their guns in order to bide some more time for a rethink on some of the more dangerous provisions in the proposal.  

One casual observation from the AmeriKat:  We have obviously not seen any of the debates on these proposals.  Instead we can only go on what is said in these press conferences.  To her, there is a flavor of this whole process that reminds her of cooking for a dinner party.  Your expectant guests don't know what manner of horror and chaos is going on in the kitchen, but everytime you come out to living room you calmly and over-enthusiastically assure them that an amazing dinner will be ready very soon.  The Presidency and Commission lend themselves to that feeling during these press conferences - who knows what sort of chaos is occurring during these debates but the AmeriKat cannot help expect that despite their positive reassurances, the patent profession will be left picking over a cold, unappetizing dinner having lost its appetite 20 years ago.    
LIVE UPDATE: Delayed agreement on unified patent due to reservations on location of Central Division LIVE UPDATE:  Delayed agreement on unified patent due to reservations on location of Central Division Reviewed by Annsley Merelle Ward on Monday, December 05, 2011 Rating: 5


  1. Again, thanks and well done.

    Looks like the UK isn't the choice for the "symbolic" central court. Why do I say that?

    "they are of course the first ones to defend the single market"

    I don't know any country other than the UK that harps on about a single market over and above any other aspect of the 'Union'.

    Which leads me to guess that Germany has been chosen, because after today's events outside of the IP world, I don't see France giving Germany everything they ask for including their kitchen sinks.

    Can we have a poll on this?

  2. Priced competitively with a US patent. Great! English and no translations and renewal fees paid once in a blue moon.

    Patent attorneys can increase their hourly rates too so as to divert some of those savings into their 'children's inheritance funds'.

  3. The Commissioner is referring to two Member States, not one. Since France is not that interested in the internal market (not in a positive way, anyway), I assume that these states are Germany and the UK.

    Having followed many EU decision-making processes in the past, I suggest that any attempt to influence the content of the texts in the next few weeks should focus: a) on trying to influence some key actors - ie the EPP group of MEPs, and/or a governing party in the national parliament of a participating Member State, and/or a lobby group like Business Europe; b) suggest a limited number of key changes to the text; c) pitch the argument in line with the objectives of the key actors - ie the suggested changes are necessary to further reduce costs and legal certainty, enhancing innovation and job creation; and d) take great care over the tone and content of the argument. Slagging off the judges of the Court of Justice is just not going to work - since the members of the EP's legal affairs committee actually quite like the Court. They are also probably aware that judgments of the Court come less than 18 months after a reference - not 'years' later. Hyperbole does not help. Better to focus on the argument that moving Arts. 6-8 of the Reg. will cut costs by reducing unnecessary litigation and delay and thereby contribute to the success of the system. Arguing that 'the industry destroyed the 2003 deal, we can destroy this one too', might just cause ministers and MEPs to think 'Well, who the hell elected YOU?'. Better to point out that businesses will have alternatives to applying for unitary or even European patents, so it is best to devise a system that as many of them want to participate in. It would be crucial to bring in a group like Business Europe to make this argument. (They seem to have no recent press release or policy paper on the issue, not since June). Accusing the policy-makers of being rude, sneaky, etc. is not going to be productive. Best to start by praising (but a little faintly) their efforts so far. And there is no point pushing the line that this is rushed and much more debate is needed - as I have said, the policy-makers at EU level can see how many years have already been taken in negotiations over an EU patent, and clearly want to bring the whole discussion to a close. In short, that line of argument is likely to be counter-productive. Better to argue that the few necessary amendments to make the scheme much better and workable can be integrated now, with no delay necessary in the overall project; and if these amendments are not integrated now, they will be a much longer delay down the line before the system can be fully successful.

  4. My regard of the press corps, not particularly high to start with, when down a few more notches at the end of that conference when, given the opportunity to ask which two countries are still blocking the compromise because of the seat of the central division, no journalist rose to the occasion. It isn't as if Commissioner Barnier hadn't given a pretty obvious hint, correctly interpreted, in my opinion, by Professor Peers. When a Frenchman, like Barnier, veiledly berates the "two biggest proponents of the single market" for holding back something positive to the single market, there is indeed quite a high chance that he refers to the UK and Germany.

    Apart from that, I don't wish to be catty towards the IPKat team and the ill AmeriKat in particular, but it's a bit rich to complain now about the Council giving too much attention to the subject of the seat, when it is exactly what the IPKat has done for the last few weeks...

  5. @Anonymous Tuesday, December 06, 2011 9:12:00 AM

    I think you are right, Barnier apparently refered to the UK and Germany:

  6. Lots of good advice from Professor Peers. It's never persuasive, when trying to get people to change their minds, to urge that if they don't, they're either fools or knaves. The negotiators are doing their best. But they are unwilling to accept advice from those who will have to use the system (or avoid it). I can see where 40 years might be regarded as a reasonable time to discuss the Unitary Patent. But in any system like this, the details are vital. This particular version has only been on the table for 9 months, and there has been a conspicuous unwillingness to engage with users about these vital details. It is reasonable to want a deal, but not at any price. Objectors judge the current price too high. They also judge that another couple of months of negotiation would be well worth while, if it offered the chance of improvements.

    Finally, I haven't heard industry threatening to wreck the deal (tempted though they might be if they could think of a way to do it). Industry's message is: "It's a bad deal. It makes the system worse. We want a system that's an improvement on what we have now. This isn't it."

  7. @Anonymous at 9:12AM -

    Its not that we and me in particular are being critical that the Council is giving too much attention to the seat of the court. I am happy that they give the seat of court a lot of attention, but not at the risk of substantive provisions. Its all well and good if X city gets the Court, but we will still be faced with having to resolve the problematic provisions of the Regulation.

  8. Absolutely, Annsley! The substantive provisions are the priority.


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