UPDATE: EU patent given the go-ahead by Legal Affairs Committee

The AmeriKat slightly losing the
holiday cheer after the unwelcome
present from the Legal Affairs
As predicted and further to the AmeriKat's post this morning (here), the European Parliament's Legal Affairs Committee (JURI) this morning has now voted in favor of all three elements of the EU patent package - the unitary patent protection, translation arrangements and unified patent court.  The pat-on-the-back press release from the European Parliament had this to say:
"In three separate voting sessions, Legal Affairs Committee MEPs backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called "EU patent package" (unitary patent, language regime and unified patent court). If Parliament as a whole and the Council confirm the deal, a new EU patent will be created. . . . MEPs inserted some provisions, among others, to tailor the proposed regime to the needs of small and medium-sized firms (SMEs).  
Cheaper and more effective protection  
The new patent will be less expensive and more effective than current systems in protecting the inventions of individuals and firms. The new system would provide automatic unitary patent protection and substantially cut costs for EU firms and help boost their competitiveness. The European Commission says that when the new system is up to speed, an EU patent may cost just €680, compared to an average of €1,850 for an American one. [And in comparison to the current system it is....?]
To obtain EU-wide protection today, a European inventor has to validate a patent in each EU Member State, through the European Patent Office (EPO), a non-EU body. This procedure entails costs, especially for translation, that can make a European patent 10 times more expensive than a US one.  
A unified patent court, to be set up through an international agreement currently being negotiated by Member States, will also cut costs and reduce current legal uncertainty due to differing national interpretations.  
How to apply for the new patent?  
Any inventor would be able to apply for an EU patent ensuring protection in all the 25 EU Member States concerned. Patents will be made available in English, French and German, but applications may be submitted in any EU language. Translation costs from a language other than the three official ones would be compensated.  
MEPs for SMEs  
Thanks to Parliament, specific measures were agreed to facilitate SMEs' access to the European patent market. These range from stronger legal protection ["What does this mean?", queries the AmeriKat] to full compensation of translation costs. Parliament's also obtained an improvement in the rules on how patent offices share renewal fees, upon which the economic sustainability of the whole system lies.  [The Amerikat is looking forward to seeing those rules....] 
Next steps  
Before the new regulation can enter into force, it must be endorsed by the full Parliament, possibly at the February plenary session, and the Council.  
The legislation is being dealt under the so-called "enhanced cooperation procedure", which allows groups of Member States to integrate policies further, even where others do not agree. Spain and Italy have so far opted out of work on the patent proposal, but could join the decision-making process at any time. This procedure was adopted to unblock the file, long stalled over language issues."
The plenery vote by the full European Parliament is due to take place in February 2012.  It then has to be approved by Council before the Regulation can take force.  Which means that there is still time to try and address all the concerns with MEPs and permanent ministers that have been plaguing the draft proposals since their inception.  Happy holidays...

p.s. If anyone knows where the AmeriKat can find the latest drafts of the Regulation and Draft Agreement that were vote don during today's JURI vote, please let her know.  

UPDATE: EU patent given the go-ahead by Legal Affairs Committee UPDATE:  EU patent given the go-ahead by Legal Affairs Committee Reviewed by Annsley Merelle Ward on Tuesday, December 20, 2011 Rating: 5


  1. "an EU patent may cost just 680 Euros"

    Presumably this would be just the cost of validating an EPO grant as a unitary patent and not the preceding costs - filing fee, search fee, exam fee, etc.

    In which case the press release is being somewhat disingenuous

  2. I agree this is a christmas present: "you know that what you're asking is not realistic and is likely to fail, but you wish so much for it that you nevertheless ask for the impossible", see Members of European Parliament ask Santa Claus for a unitary patent

  3. "...an EU patent may cost just €680, compared to an average of €1,850 for an American one."

    Advertispeak. If supermarkets advertised like this, they might be open to prosecution. Leave aside the deception involved in comparing an average (US) with a theoretical minimum (EU)("may cost"). How are these costs calculated? What assumptions are made? If we knew that, we could comment on how unrealistic they are. As it is, they are meaningless. "Nullius in verba" - let's have the figures, and show your working!

  4. Politicians never seem to bother themselves much with genuine evidence. Evidence-based decision-making usually consists of making a decision on policy/political grounds, and then selecting the evidence that supports the decision. Inconvenient evidence pointing the other way is simply dismissed as irrelevant or ignored. By the time the chickens come home to roost, the decison makers will usually have moved on elsewhere, leaving the mess for others to sort out.

    The EP Litigation process has simply followed the usual well-trodden path that has given us the Euro.

  5. Politicians never seem to bother themselves much with genuine evidence.

    Or, in a quote often attributed to one of Chancellor Merkel's predecessors: "Laws are like sausages: best enjoyed in ignorance of how they are made."

    Mind you, a more dignified quote more solidly attributed to the same politician also noted that "Politics is the art of the possible." Much of the criticism directed at the project of the Unified Patent Court and unitary patent seems to ignore that aphorism...

  6. The EP's website is no good at providing this information, but the two legislative texts which the EP committee voted on should be the same as the agreed text in the fourth column of the document setting out the EP/Council deal previously discussed in this blog.

    The Amerikat keeps suggesting that maybe there was some secret renegotiation of these texts in the Council at the beginning of November, but I have been following the EU process a long time and once the EP and Council negotiate an agreed text at 'first reading', they stick to it in practice. For its part, if the EP committee had suggested amendmets to the agreed text, the press release would not have indicated that they endorsed the deal.

    As for the litigation agreement, I think the intention all along (judging from the earlier drafts of the report on the agreement) was for the EP committee to vote for a list of principles concerning the agreement, rather than the text of the treaty itself. The most recent version of the text of the treaty is unfortunately not online, and unlike the agreed text of the legislation, it has not been leaked either as far as I can see.

  7. An old Italian proverb says "The hurried cat produces blind kittens"...

    Does anyone know how long it will take the CJEU to consider the legal actions of Spain and Italy?

  8. Just a thought, there may be some clarification of what the EP committee was voting on if you watch the recording of its proceedings for today, on the EP website.

  9. aw hell. I hope I pass the EQE before the new system comes into effect.

  10. I would have hoped that a principle of legislation is that what you introduce should be no worse than the status quo.

    However experience shows that most legislation is the result of an urge to look busy. "Something must be done - this is something - result!"

    It looks as though again the urge to look busy will trump an analysis of whether what is proposed is a net improvement.

    There has been no tested analysis of costs and benefits at any stage in the history of this legislation; merely arm waving assumptions and formalised gossip.

    There are the bones of a good agreement here, but it appears the bones are being dressed in pork [e.g. language "compensation" for SMEs - haggling over court location etcetera] and the outcome will look a pig and will be a swine to operate.

    Hey ho. Merry Christmas!

  11. If you want to know what was actually voted upon, there are two ways:

    - the "painful" (but faster) way: collate all the relevant reports and amendments available here (http://www.europarl.europa.eu/meetdocs/2009_2014/organes/juri/juri_20111219_1500.htm),
    then watch the video of the voting session here(http://www.europarl.europa.eu/ep-live/EN/committees/video?event=20111220-0900-COMMITTEE-JURI&vodtype=Vod#anchor1)and tick amendments one by one...

    - Or the "lazy" way, by which you wait for the nice people of the EP to do the work for you (it could take a week).


  12. As I said before, it is more than reasonable to assume that the EP committee voted on the text which was already leaked to this blog, in particular since that text specifically states that there has been a deal on the text listed in the fourth column, and there are no subsequent documents listed on the Council's register of documents concerning this legislation.

    Re the comments of Meldrew - there are studies on costs and impact assessments of the proposals online at:


    There may well be good reasons to question the details of these analyses, but I don't think they can simply be dismissed as 'arm-waving assumptions' and 'formalised gossip'. If anyone has specific grounds to question the details, why not put them forward?

  13. "Today sixteen Member States are not parties to the London Agreement"

    How about stating how many are actually parties rather than how many are not?

    "Even if the London Agreement9 reduced the costs of validation requirements in some MS, the
    overall cost of validation in 3 MS (DE, FR, UK) equal € 680; it reaches € 12 500 in 13 MS
    and over € 32 000 if a patent is validated in the whole EU."

    And, how much in the 11 member states of the London agreement? Selective use of data. Let's take out Spain and Italy form the rest as tey aren't party to the unitary patent. Can't see many important territories left to be overly concerned about. Let the others join the London agreement instead. They appear to be the coutries getting huge NET EU handouts and the recent large bailouts. Is the technical term 'parasites'?

    "If anyone has specific grounds to question the details, why not put them forward?"

    - Is that a joke from an EU-sponsored Christmas cracker?

  14. Steve, thanks for that. It would be really useful to see the assumptions behind the cost estimates. However, I haven't been able to do this yet. I got the message:
    "The address you used is incorrect or obsolete: /internal_market/indprop/patent/index_en"
    Can anyone help with where it's moved to?

    Meanwhile, I note that the quoted cost of €680 is not a total cost (with or without agent's fees), but only the (estimated) cost of translating the granted claims into the other two EPO languages. " In the long run, in the territories of the 25 participating Member States unitary patent protection will cost €680, i.e. the cost of the translation of the claims to the two other procedural languages of the EPO (which were not chosen as the language of the procedure)." [http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/240&format=HTML&aged=0&language=EN&guiLanguage=en]. The equivalent cost in US would not be "an average of €1,850" but zero (since there is no need to translate any part of a US patent specification into any other language on grant).
    This false comparison is of course simply the result of ignorance, but it does not inspire confidence. Like should be compared with like (even in press releases).

  15. For the more precise references to the Commission studies, see:




    The first is an 84-page analysis of patent litigation costs by Professor Dietmar Harhoff. The second is a 56-page analysis of the economic cost/benefit of the EU patent by Professor Bruno van Pottelsberghe. The third is an analysis of patent fees by the same professor. There are probably holes that can be found in these analyses, and certainly the final texts of the EU rules differ to some extent from what the professors assumed, but as I said, it can't simply be argued that the economic assumptions underlying the EU patent measures are 'arm-waving' or 'gossip'. That may well be true of the EP press release, but there is more underlying substance there.

    As to whether I am an 'EU-sponsored Christmas cracker', at least I give my real name so that anyone who spends 3 seconds googling it can find out who I am if they wish to - and indeed the first page of such a google search (I don't google my name often, really!) shows that I work full-time for a university, not the EU, and have written an online analysis criticising a particular EU proposal as 'an assault on human rights and national sovereignty'. (I am not the guy who was jailed for council tax protests though). If you googled 'Steve Peers Statewatch analysis', I think you might even find more of the same. Seems that the EU is not getting much back for its sponsorship!

    Finally, the case law on EU participation in international agreements relates to agreements with third States (see the many references to 'third States' in the ERTA judgment), not agreements between Member States alone, with no third-State involvement (and Opinion 1/09 ruled out third-State involvement as regards this patent litigation treaty). On agreements between Member States alone, see Cases C-316/91 and C-181/91 and C-248/91, where the Court said that in principle Member States are free to go off and sign treaties among themselves in areas of shared competence. They still have to avoid conflict with any EU law which binds them, but as we have seen the Commission is planning to propose amendments to the EU's civil jurisdiction legislation to avoid this as regards the patent litigation treaty.

  16. Gibus, considering that there are already very strong safeguards in the European Patent Convention and Rules of Procedure of the Boards of Appeal of the EPO concerning the neutrality of the members of the EPO BoA, I can't see how that amendment can be "interesting" to anyone but some paranoid minds in your own "microcosm"...

    It's meaningless fluff.

  17. Gibus has been trying to burst those 'microcosms' for a while [see his previous posts and links to his 'conspracyy theory websites - who'd have thought it was President Kennedy that came out of hiding in Dallas to shoot JR!], but he hasn't got a sharp enough pin. Hot air and ignorance aren't very strobg weapons.

  18. The Harhoff study “Economic Cost-Benefit Analysis of a Unified and Integrated European Patent Litigation System” has a reasonable analysis of the problems of the current fragmented regime but falls apart when analysing costs and benefits and comes to a full-hearted endorsement of the idea of a central court based on half-baked assumption.

    The principal problem is alleged to be duplication of infringement actions in several jurisdictions.
    However, the study states that:-

    “The exact extent of duplication is unknown. While there are a number of high-profile cases with extreme duplication and heterogeneous outcomes, there are currently no reliable statistics that would allow us to compute with precision the incidence and costs of duplication”.

    and further that:-

    “The ‘duplication share’ is quintessential for the estimation of the direct benefits of a unified system of patent litigation”.

    However there is no objective determination of the extent of such duplication: instead the study applies a “parameter” of 60-70% of non-German litigation being a duplication of German litigation with no evident justification.

    If this is not arm-waving I don’t know what is.

    What little evidence used in the Harhoff paper comprises survey data, practitioner estimates, and data from the 2008 Pharmaceutical Sector Inquiry.

    If this is not formalised gossip I don’t know what is.

    The two van Pottelsberghe studies are equally vague and seem driven by the urge to get people to seek unitary patents rather than validate in a few countries [whether they want to or not].

    Anyone recommending an SME to choose a unitary patent would be well advised to prevent lifetime analyses of renewal costs as a defence to an allegation of false-selling.

    I stick with characterising the studies as arm-waving and formalised gossip. These are after all the principal tools of the economist.

  19. Good to see how many friends I have among anonymous commentators of this blog, but it's sad they aren't very well educated and have no more arguments than accusing me of "ignorance, paranoia and conspiracy theory".

    Note that I'm only providing here some informations. Notably about compromise amendments voted on the "Lehne report". I haven't filed these amendment, please refer to Taylor & Wessing if you have some complaints about them.

  20. @Steve Peers, actually I'd be very interested to read your study about constitutional implications of EU patent (http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8379630&fulltextType=RA&fileId=S1574019611200051). Is there any way to get it? Thx very much

  21. Gibus, I have been through your website and read the paranoid, conspiracy theory comments written by yourself. To come up with such things leads to the conclusion of 'ignorance' as the least harsh criticism that could be made.

    You like the unitary patent because you believe the ECJ will overthrow any and all computer-software related inventions that the evil EPO seek to grant. The fact that the ECJ have no relevant legal knowledge or technical background, making them wholly unsuitable to understand patents, let alone provide judgements of the highest authority, only helps your cause.

    It is indeed sad that I am so poorly educated, what with advanced science and IP legal qualifications. I will never sit at the ECJ but I understand more about IP than you or the ECJ ever will.

    Anything to help your cause is what you cling to, which is what makes you so blinkered.

  22. Anonymous, that's the point, thank you to raise it: you think that you know much more about "IP" (I assume this equals to patent for this conversation, I doubt you are referring to Internet Protocol) than anybody else. Open your eyes, there is a world beyond patent law, and patents sometimes are endangering the real world.

    You're point is much better depicted by the director of legal service, Hubert Legal, in a conference given for CEIPI in 2010:

    "Le pourvoi, ou la cassation, a été envisagé. Il serait la voie royale, parfaitement balisée par les traités, pour une juridiction des brevets de l'Union. Ce qui ne veut pas dire qu'elle serait populaire du côté des spécialistes car la Cour ne se sentirait aucunement liée par leurs habitudes, leurs présupposés et leur doctrine. Je n'en veux pour exemple que le premier arrêt de la Cour sur pourvoi dans l'affaire Procter & Gamble portant sur le refus d'enregistrement de la marque communautaire Baby Dry. Le microcosme, comme aurait dit Raymond Barre, n'a pas manqué d'y voir l'intrusion d'un éléphant dans le magasin de porcelaines... Mais tant pis; c'est le prix de l'unité du droit. Ce n'est pas ce risque d'irrespect des usages d'une discipline, je dirais presque d'une corporation, déjà ancienne qui pose problème ici, au moins du point de vue du droit, c'est le fait de charger la Cour du pouvoir de casser des arrêts rendus par des instances juridictionnelles non entièrement régies par le droit de l'Union."

    Maybe, you have enough self-importance to say that M. Legal is ignorant in patent law, like any ECJ judge, any MEP (even those working for Taylor & Wessing?), and in the bottom line, anybody but "independent" members of EPO Boards of Appeal... Hey wait! do you think there is a conspiracy of ignorant people against patent professionals?

    OK, you're quite funny, but I don't think readers are interested by your childish arguments. I will not answer you any more, but if your point is to show you have a bigger willy than me or ECJ or whoever, be my guest.

  23. Looks like Gibus accidently wandered into the world of intellectual property law by mistaking the Kat's blog as an Internet Protocol blog.

    How dare intellectual property lawyers try to monopolise even the IP acronym!

    I must admit to not being self-important enough to tell the EU and the ECJ how to do the job they are actually qualified for. Unlike yourself that is:

    "Under close scrutiny, it appears that the legal basis of the regulation on the unitary patent is at best questionable. At worst, such doubts could very well mean that the regulation is simply illegal."

    If you are really intested in challenging software inventions then the way to do is is not through a back door method of hoping patent-ignorant judges get to decide the cases. [yes it really is a specialist area of the law - just ask Taylor Wessing, or go find a high street solicitor that know more than the mere existence of the subject]

    The problem with the software patents granted, particularly in the US, is the lack of inventive step and the difficulty in searching for prior art. Any truly 'inventive' patents in the US or Europe wouldn't be problematic for anyone, but would simply support and encourage innovation as in all other technical fields. European patent judges are much more likely than the ECJ to find 'one-click' style patents invalid.

    Just to show no hard feelings, I've even entered your website into this poll: http://listverse.com/2007/08/21/top-10-conspiracy-theories/

  24. A report on the LIBE committee meeting of the EP confirms that they voted on the deal (previously leaked) with the Council, reiterates that the only issue outstanding is the seat of the court, and also states that Italy now supports the deal:


    To Meldrew - if courts do not have information on duplication of patent proceedings, surely the only way forward is to obtain information via means of practitioner surveys; this sort of approach is hardly novel. Is that much different in principle from the customer surveys that businesses use to make decisions? Are you against the validity of such surveys in principle, or criticising the design of this one?

    To Gibus - I have licenced the copyright of my article to the publisher, can you purchase it online or get access to an academic library which subscribes to the journal?

  25. @Steve Peers, I've tried to buy your article on Cambridge journal's website, but ended up with an error: "The system cannot accommodate your request. We will try to remedy this as quickly as possible. Please try again later."

    I just don't know if, as volunteer for a non-profit organisation, I can apply to an academic library...

  26. To Steve Peers - my point is that the decision is being made without any data on what is alleged to be the most critical point of the cost-benefit analysis.

    The only way forward is not to obtain information via means of practitioner surveys. If it is an EU level problem, then the EU has more than enough muscle to "persuasively" get the courts to cough up the requisite information.

    This is all about the European project; very little about what might benefit European industry; and still less about what might benefit SMEs.

  27. To Steve Peers:

    Until now, Italy has supported only the patent court agreement, not the unitary patent regulations.

  28. Steve, Steve, Steve!!! You can't ask Gibus to pay for IP-protected material! When it comes to below-the-belt comments, that one takes the biscuit.

  29. Since the publisher now controls the copyright, I can hardly put the paper online for free, or make public arrangements to hand out copies! I don't get any royalties if anyone buys a copy through the official channels, so I am not touting for business (I have never even mentioned the paper on this blog in the first place). If Gibus wants to send an e-mail to my university e-mail address, I can contact the publisher to sort out the problem. Or some university libraries are open to the public.

    To Meldrew - do courts actually collect information about whether a particular European patent has been litigated in another Member State already (or subsequently)? If so, I agree it would make sense for the EU to twist arms to get that raw data. If not, then I can't see an alternative to practitioner surveys. Perhaps the EU should have passed legislation years ago to require collection of statistical data relating to various types of court proceedings, but it hasn't yet.

  30. To Steve Peers,

    Presumably the courts know the identity of the plaintiff and the defendant, and the patent number.

    If not, why not?

  31. The data should have been collected before bringing in new regulations on the back of wholly inaccurate guesswork.

    "Perhaps the EU should have passed legislation years ago..."

    What a waste-of-taxpayers-money suggestion. Perhaps the EU should stop existing for its own sake and those employees, MEPs and others riding the gravy train.

  32. I cannot understand why contributors to this (or any) blog think they help their case by abusing their critics. It distracts attention from their arguments - even, perhaps, suggests a lack of faith in these.

  33. @Meldrew & Steve Peers, about court collecting information about litigations of the same patents in other Member States, the Apple vs Samsung case is very interesting.

    You can find for eg. on French decision held on the beginning of December a complete history of litigations prosecuted between the parties, not only with regard to patent at issue in this case and not only in EU Member States, but all over the world about many patents, Community designs, etc.

    (about your article, I'll write at your university e-mail address...)

  34. To clarify my suggestion about judicial statistics, my point is that it would have been useful to collect information starting a few years back about judicial statistics specifically relevant to judicial cooperation between States, not just patent litigation. This would have provided a more solid evidence base for the adoption and review of the EU legislation on civil judicial cooperation generally, ie on jurisdiction and choice of law, plus cooperation in areas like the transfer of evidence and service of documents in many fields. It might also be useful in the context of considering new and existing treaties within the Hague Conference context. This is not a suggestion for legislation for its own sake, but is directly linked to a policy the EU has been involved in for awhile, which concerns cooperation purely across Member States' borders. The EU did not bring itself into existence, it was created and developed by Member States who can leave it or shut it down if they choose.

    Did the drafters of the EPLA collect any data, or conduct any studies or impact assessments, before they began drafting that treaty?

  35. Re EPLA - Q = did they quote data to support their position which hadn't been collated?

    Leave or shut it down, maybe. Control it while it exists, unlikely. It isn't supposed to be a Frankenstein creation so its institutions should act in accordance with the wishes of the citizens of member states who fund their existence. No-one has the right to tell a member state to leave if they don't agree to everything. The member states have a right to control the EU, not the other way round.


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