Europe's runaway patent train on track -- for scrutiny, or mutiny?

The AmeriKat despondently looks away 
after her pawing at the scratchpost of unitary 
patent politics uncovered 
some unsettling news
Last week the AmeriKat had a question: Under the new Danish Presidency, would the European Union's proposed unitary patent proposals be (a) rushed through with the same disturbing speed that struck fear into the European patent community last year, or (b) would the Presidency, with the benefit of time and unanimous advice and pleading from experts, allow for the reconsideration and improvement of the problematic texts? Disappointingly it seems, from the latest information received by the AmeriKat, the answer is (a).

A few days ago the Council published this memo from the General Secretariat to the Jurist/Linguists Group which records that the group will hold a meeting on 26 January 2011 in order to finalize the texts of the Regulation for the creation of unitary patent protection. Although the memo seemed purely procedural by nature, upon further reflection its publication raised two questions for the AmeriKat – (1) where is the final text? and (2) if the stage has been reached whereby the group is finalizing translations of the final text, is all hope lost in respect of the amendments that are so desperately required?

A little bit of pawing around revealed the following:
Where is the latest text of the Proposed Regulation? Besides the privileged few in Brussels, no-one has seen the consolidated version of the Regulation but, as previously reported here, the Proposed Regulation passed by the Legal Affairs Committee in December is identical to the proposed text that was agreed during Trialogue, opening the way for the text to be adopted on the nod at the first reading.  
 • On what and when is the European Parliament voting? It is these draft proposals (above) that will be subject to the plenary vote by the European Parliament during its session on 13-16 February 2011.  However, this is only if the Council agrees on the seat of Central Division of the Unified Patent Court, which has been a sticking point for the UK and Germany.  
So what is going on with the seat of the Central Division? Today, at the meeting of the Committee of Permanent Representatives in the EU (COREPER), it is expected that UK Prime Minister David Cameron, President Sarkozy and Chancellor Merkel will meet to discuss and agree on the seat of the Central Division. If an agreement is reached, it is anticipated that the other Member States will fall in line with their decision. If there is no opposition from other Member States, COREPER could then inform the European Parliament that there is now an agreement in Council on the proposals on the whole package including the seat. Such notice from the Council would smooth the legislative road to the European Parliament’s vote in February, after which the Council would then adopt the proposals into European law.  
But what about the opposition to the Proposed Regulation? Despite Cecilia Wikstrom having been a hopeful light for the patent profession, it is understood that she voted against her own proposed amendments in respect of Articles 6 to 8. The net result is that most, if not all, political parties in the European Parliament will support and vote for the proposals during the February vote.  
Are any EU Ministers listening to the European patent community’s unanimous expert opinions? It seems not. With Ms Wikstrom having seemingly given up the fight there does not appear to be any MEPs who will fight to introduce the vital amendments to the proposals that are required to save the unitary patent system from the very fate it was meant to avoid (high costs, delay, uncertainty, etc). In order for amendments to be debated by the European Parliament, amendments must be tabled by either a political group or at least 40 MEPs (Rule 156.1 of the Parliamentary Rules of Procedure). Although the period to table amendments has not opened (and it depends on exactly what day the February vote is scheduled), it seems unlikely that any MEPs will table the amendments. The AmeriKat understands there may be some possibility of the Green Party tabling amendments, but it is believed that, even if they do, their amendments will not include the deletion of Articles 6 to 8 from the Proposed Regulation.  
Where indeed is Italy?

Where is Italy in all of this? The AmeriKat has today heard that Italy has sent a letter to the Danish Presidency expressing its desire to join the Unified Patent Court but only insofar as it deals with bundled patents (i.e. the current “old” European patents).  However, she understands that, currently, Italy does not want to join the unitary patent. As anticipated by the Kat, Italy additionally expressed its interest in hosting the seat of the Unified Patent Court in Milan (see this document, a draft reply not yet available on the Council's website to this question from Matteo Salvini).  Given that the argument on location is believed to really have centred on London, Paris and Munich, the AmeriKat very much doubts that Italy will have much hope in securing the seat -- especially since they currently want no part of the unitary patent protection element of the package. The AmeriKat is unsure what the position is vis-à-vis Spain. 

Who from the IP Bar will be
giving evidence to the Committee?
The above makes for a rather depressing read, but never tiring of her cheerleading ways, the AmeriKat thinks there may be some hope in the shape of national governments of the Member States. She reported last Friday that, following an outpouring of response from the patent community regarding the proposals' substantive provisions, the UK’s Parliamentary European Scrutiny Committee has called for patent professionals to give evidence to the Committee. The Committee will hear evidence on 25 January 2011. Evidence will be given by Tim Roberts, President of the Chartered Institute of Patent Attorneys (CIPA), supported by Vicki Salmon (Chair of the Litigation Committee of CIPA), as well as a yet-to-be-determined member of the UK’s Intellectual Property Bar. The AmeriKat understands that Dr Jochen Pagenberg (Bardehle Pagenberg) has been invited to give evidence on behalf of EPLAW.

The floor of the  UK's House of Commons -soon to be
 the scene of the next unitary patent debate?
The Committee has the power to keep European legislation under scrutiny until it is happy with the answers given to them by the UK Minister in charge of the proposals, upon which time it“releases” the documents/legislation. It also has the power to recommend documents for debate in a one of three of the European Committees (see p.12 of the Committee's Guide).  More importantly, when the Committee feels that the documents are particularly important, it also has the power to recommend that documents be debated on the Floor of the House of Commons. Under a scrutiny reserve resolution passed by the House in 1998, Ministers "should not" in the Council of Ministers give agreement on proposals which the Committee has not cleared or which are awaiting debate (p. 26 of the Committee's Guide).  Although the AmeriKat notes the use of the phrase “should not” instead of “cannot”, this mechanism may mean that the UK Government may not be able to agree the latest proposals with other Member States in Brussels until the concerns raised by CIPA, EPLAW, CBI, IPLA and numerous other organizations are addressed. This would, it is hoped, allow the time required to reopen the issue of amendments that are necessary before the proposals are adopted into law.

The AmeriKat hopes, perhaps blindly, that with news of this procedure in the UK and the news of similar concerns in Denmark, that other national governmental committees and politicians will take the opportunity to examine the proposals, speak with their patent professionals and raise these issues with their MEPs. The Kat encourages readers to take up the baton with their national politicians and MEPs before the "last chance saloon" of the February vote.

The  t-shirt the AmeriKat will be
wearing should EU ministers continue to
turn  a blind eye to industry concern 
Lawyers are often depicted in popular culture as greedy liars out to serve not their clients', but their own, best and only interest in making money. The AmeriKat was reminded today that, if this issue demonstrates anything about the legal patent profession, it is that this generalization could not be further from the truth -- the debate that has plagued these issues was raised by the legal profession because the current provisions in the Proposed Regulation will result in delays, uncertainty and thus increased costs for users. The only people who would benefit from such a system would be the lawyers who would have to navigate the tangled system, not the users of the unitary patent system who it is meant to serve.

The AmeriKat therefore urges that EU ministers and national governments listen, for one last time (or for the first time it seems in some cases), to the patent profession - "Because otherwise, when your voters complain about the costs of enforcing patents in Europe and when investment in patent protection and enforcement in the EU dries up, you will only have yourselves to blame", she says.
Europe's runaway patent train on track -- for scrutiny, or mutiny? Europe's runaway patent train on track -- for scrutiny, or mutiny? Reviewed by Annsley Merelle Ward on Friday, January 13, 2012 Rating: 5


  1. Another great post, AmeriKat. Lets hope someone with influence either in the UK or in Europe more widely is reading!

  2. It is not just all of the professional associations and industry bodies who are against the current proposals but also all of Europe's patent judges.

  3. Bravo, AmeriKat, the new Joan of Arc. But why does it take an American to raise the banner and rally the European patent troops? We have only ourselves to blame for letting this tragedy happen.

  4. Thanks for all the excellent work Annsley is doing to keep us all updated.

    I am using the posts to keep the Yorkshire and Humber MEP, Timothy Kirkhope, fully briefed.

  5. The latest text of the legislation is officially online at:

    I think this was already mentioned on the blog. Also this is exactly the same document that was leaked to this blog at the start of December.

    It is very clear that this is the deal between the EP and the Council, and so this is what the EP committee voted to approve in December, and the plenary will vote on (unless there is some sort of change of heart) in February. While it is inexcuable that the EP has still not put online the text which its committee voted on, comments to this blog have confirmed that it is the same text.

    This has all been pointed out quite a few times, so I don't know why the Amerikat keeps raising this particular issue...

    On the other hand the latest document comprising the text of the draft litigation treaty is STILL not online - and the Council has delayed its reply to my access to information request for it. This is seriously inexcusable. At the very least the people responsible should have their best furniture scratched by angry Kats...

  6. Thanks Steve. I know that this is the agreed text (as I posted), but it is not the final draft in terms of format etc. As a lawyer, when you see a document that looks like this (formatted in a table and which is labelled "Analysis of the final compromise text" and "Working Document") all your training screams for a proper version of the final text. This is why we want to see a "final" document.

    When did you send in your request?

  7. It should always be borne in mind that decisions such as this are made by politicians. My experience has been that politicians usually treat agreed policy as holy writ, viewing any criticsm, however well argued and evidence-based, as mere heresy.

    I wish those who would point out the defects in the proposals well, but fear that their arguments will fall on deaf ears. I will be delighted if I am wrong!

  8. This is the answer I received for my request:

    "Your request of 12 December 2011 for access to a Council document has been registered by the "Access to Documents" unit. Thank you for your interest.

    The necessary consultations concerning this document are still in progress. Therefore, the time-limit for the General Secretariat to reply to your application has to be extended by 15 working days (01.02.2012), in accordance with Article 7(3) of Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Official Journal L 145, 31.5.2001, p. 43)."

    I hope we will read the text on 01.02.2012!

  9. You will excuse my bewilderment, but, even as a patent professional, I can't quite fathom what is the big deal with Arts. 6 to 8 of the proposed Regulation. I do see that they are being criticised by a great many bona fide experts, patent judges, etc., but when I read the criticisms themselves I find little substance and much hyperbole.

    Surely, all these learned gentlemen do not expect to convince us, never mind our elected representatives, merely by an appeal to authority?

    Now, Arts. 6 to 8 concern the effects of unitary patents. Their content is quite humdrum and corresponds to that existing national law and international treaties to which EU member states are parties. In any case, what appears to be criticised is not their content, but the fact that they are in the Regulation itself, and that this may eventually result in the European Court of Justice ruling in matters of "substantive patent law", and in particular in matters of patentability. The critics contend that this could make patent litigation more costly, longer and less predictable. (Although, having followed the IPKat's coverage of previous ECJ rulings in IP matters, they generally didn't appear to be particularly outlandish, unpredictable or unreasonable - certainly not compared with those of, ahem, some national patent courts -, nor does the ECJ seem to be particularly tardy in its rulings -in fact, it's a damn sight faster than, say, the BoA of the EPO-).

    I therefore put forward the following questions:

    a) How do the critics believe that a referral related to any one of Arts. 6 to 8 could lead to the ECJ ruling on matters of patentability?

    b) Why do the critics believe that having the ECJ rule on matters of patentability would be a bad thing?

    c) Are the critics certain that leaving the subject of the effect of the unitary patent out of the Regulation would not also have negative effects on legal certainty?

    d) Are the critics certain that a Regulation on the unitary patent without mention as to its effect would not be open to challenge at the ECJ?

    I am genuinely curious about this, since I do not see these questions answered so far.

  10. Answering anonymous' questions:

    a) Suppose the allegedly infringing activities are those of refurbishing patented articles and selling refurbished patented articles, the question to the ECJ could be whether such activities fall within the scope of "making, offering, placing on the market or using a product which is the subject matter of the patent".

    b) In theory, it is not bad to allow the EU's highest court to have a say on law. In practice, however, there are very serious drawbacks: the idea of having the new European patent court system is to provide a specialized patent court able to give high-quality decisions in an efficient manner because of it being specialized in patent law. Now this dedicated court has to refer questions on teh core of its competence to another court, that is not specialized in patent law and that is overburdened, so that it cannot give decisions within a reasonable time-frame. This goes against the very object of creating a specialized European patent court. Even worse, because infringement law will now become a matter of EU law, also national courts dealing with national patents will have to refer questions on infringement law to the ECJ whenever the rules in national law are identical to those in EU law. See ECJ decision C-3/04 as an example of a referral concerning a case not covered by EU law, in which the national law happened to be identical to some EU law that was strictly speaking not applicable to the case, so that it made sense to ask the ECJ about the proper interpretation of that EU law.
    Anyway, there is no need for the ECJ to be the final arbiter as to patent infringement law, as the central appeal court could already provide uniformity in patent infringement law.

    c) Yes, as if infringement law is not in the regulation, it will then be in the new litigation agreement, so that the new European patent court only has to look into its own establishing agreement to know the relevant law.

    d) Yes, as the mere centralization of the administration of European patents after grant is already fully within the EU's competences. There is no need for this regulation providing for a central administration of certain granted EP patents to also provide a uniform law on infringement.

  11. Leo:

    I'm afraid that you haven't answered my question a). The critics rue that there may be referrals to the ECJ "on matters of substantive patent law". With that phrasing they appear to imply that such referrals may not just be on questions of infringement, but also of validity/patentability. I don't see how Arts. 6 to 8 may have this consequence, and was asking whether I was missing something there.

    With respect to question b), if you agree with me that Arts. 6 to 8 may lead to referrals only in matters of infringement, not validity, you will also reckon that having non-specialist courts decide on matters of infringement is far from unprecedented: see Germany.

    As for the ECJ being "overburdened", as I noted before, it does not appear to be any more overburdened than most courts in Europe, specialized or not. Professor Peers, in a previous comment noted that "the average wait for a judgment of the Court of Justice for a request for a preliminary ruling in recent years has been 16-17 months". I wish most courts in Europe were this speedy.

    Concerning the possibility of national courts also making referrals to the ECJ on patent infringement matters, that doesn't seem such a terrible prospect either: indeed, it would speed up the harmonization of national patent law, which would, in the medium term, also increase legal certainty in national patent cases. This would obviously not be the case if Arts. 6 to 8 were shifted to the litigation agreement.

    And your answer to question d) does not convince me that the ECJ will not take a dim view of an intergovernmental agreement including provisions which may have a direct impact on the freedom of trade within the Single Market.

    In any case, none of your answers seems to justify the somewhat shrill tone of some of the criticism directed at the proposed Regulation.

  12. Anon at Friday, January 13, 2012 1:40:00 PM,although claiming to be a patent professional has repeated the criticisms of another commentator on this website, who is not a patent professional. The tone to the wording is also very similar to theat previous 'non-patent professional'. How odd.

    If I was the slightest bit skeptical would say they are one and the same person, and if they are I would like to congratulate them on their recent qualification.

    I may be barking up the wrong tree here (but good to have a meaningless bark every now and then just to clear the old lungs), but why would someone believe the questions and criticisms were not answered previously, but would be so if asked by a patent professional? Is it because he thinks we are all part of a secret, self-serving club? Self-serving maybe, but hardly secret.

    As it happens, today someone has provided their answers, but the mysterious Anon seems now to challenge the reasons given. Being a 'patent professional' (we call ourselves 'IP professionals' these days, or specifically patent attorneys/agents) surely these answers must be some comfort to his doubts? But no, it looks like they have a well prepared case for the opposition and this wasn't merely a "can anyone clarify the reasopns ....' style question.

    Methinks the gentleman doth protest too much.

  13. Dear Anonymous@10:22:

    I am a patent professional (more specifically a patent attorney with 15 years' experience). I also am not "Gibus", with whom I've frequently sparred here. Now, could we please remain civil and answer these questions, rather than resort to appeals to authority and (misguided) ad hominems?

  14. No I'm not the same person as "Curious Anonynouse" (I'm happy you've chosen another nickname so you can be distiguished from other anonymous), and I've replied yesterday to one of his question but apparently my comments has been lost somewhere. I'm rewriting it below, since it is disclosing some interesting information from the Commission:

    OK some quick comments, I've already given more information about UK Scrutiny Committee on ksnh blog.

    First, Steve Peers is absolutly right. The final text of the regulation is known even if not published in a final format. And together with last draft agreement on the unified patent court, the Council register has still not published details of a very important document: doc. 15856/11: compatibility of the draft agreement with the Opinion 1/09, which is likely to raise substantial issues (see again ksnh blog (disclaimer: I have no more interest in this blog than in ipkat blob).

    Second, it cannot be said that there is unanimity from "experts" for removing articles 6-8 out of the regulation. Patent professionals are not the only experts in this case, EU Law is also concerned and it seems it is not a field where patent professional are specially skilled. And even among patent professional, some have recognised that there is no "a realistic alternative to an involvement of CJEU in questions related to infringement cases" (see FICPI's opinion).

    And third, the Commission's legal services have already answered to "Curious Anonymouse"'s question d). The regulation would be illegal without articles 6-8, because the legal basis (Art 118 TFEU) allows EU to create a patent title. Without rules on substantive patent law, this would not be a new patent title, and nothing would have been created.amendment 60 that was filed (and rejected) in JURI.

    I've leaked a letter from Commission answering MEP WIkström on this.

    What is funny is that Lord Jacob has answered to this opinion by saying that "if the logic […] is correct, it would be necessary also to provide in the Regulation for all matters concerning scope and extent of protection. This would mean incorporating the relevant provisions of the European Patent Convention." Mr Jacob is right on this point and amendment 60 that was filed (and rejected) in JURI, is all about this. Which is something the regulation cannot avoid to comply with EU Treaties.

  15. The ECJ have no experience of patent matters and so are not qualified to comment. Patent law across Europe is 'separate from normal law' for want of a better descriprion. As a patent attorney, I can advise on patents all day long, but don't ask me whether your neighbour has a right under the Human Rights Act to allow their hedge to drop leaves on your conservatory'. I'll happily leave (unintentional pun) that for the experts at the ECJ.

    I'm a little concerned about the 'new patent title' as expressed by Gibus and the 'anon' at the commission legal services (more self interest - everything must now be controlled by the EU - the EPO would never have been considered legal under the current regime and their interpretation lawyers). Just how are all businesses and their IP reps supposed to operate in a new era where every single word in the new legslation is up for a fresh interpretation? Or, to be more precise, its first interpretation?

    Would I, as a patet expert suddenly become unqualified and non-expert in EU patent matters overnight? If so, will the EU pay for my retirement or possibly retraining as a C.A.P. sheep counter?

    I, too, would like to hear further explanations for Jacob et al on their objections, but that desire is not based on any belief that they have no good reasons and are merely ad hominem'ating.

    We in our microcosm have the interests of innovators and all others for whom the patent system is important. Those at the EU have the goal of their 'ever-increasing union to the point of a single federal state' at the forefront of their minds (or just behind their milking of the expense claims system). The mistake of the patent community was to think they could improve the system by their desire for harmonisation.

  16. Gibus, thank you for linking to that letter of the Commission. It does indeed appear to offer a good explanation for Arts. 6-8 of the proposed Regulation. Please note, however, that the key words in Art. 118 TFEU referred to by the letter seem to be, in my opinion, "uniform protection". I'd think that Arts. 6-8 are amply sufficient for that. Could you please provide the context of Jacob's words?
    I don't see why the Regulation shouldn't comply with the Treaties without amendment 60. It rather seems that its only purposes, like those of all the other equally rejected amendments proposed by Engström (Pirate Party) and Lichtenberger, was to hobble patentees and make the unitary patent thoroughly unworkable (btw, congratulations for the particularly disingenuous amendment 63, incorporating Art. 52(2) EPC into the regulation while leaving out the crucial "as such" of Art. 52(3) EPC).

    Anonymous@7:02, you should take Gibus' claims with a pinch of salt: the criteria for validity of unitary patents remain the same as for current European patents, and the content of Arts. 6-8 concerning the effect of unitary patents, pretty much corresponds to that of current national patent laws. Of course we patent attorneys will have to learn new things, but that is expected of us anyway, isn't it? Maybe it would be easier for you if you dropped your anti-EU bias, anyway: for a start it would help you understand the difference between the CJEU (aka ECJ) and the European Court of Human Rights, which isn't even a EU body. The CJEU has already had to rule on patent matters, most recently in Greenpeace vs. Brüstle. While the outcome in that case may be deplored (depending on your opinion on stem cell therapy bioethics), I'd contend that the CJEU did an admirable job of interpreting the law as it stands, and that whichever criticism should be directed at the lawmakers, not the judges.
    As a patent attorney, I also consider that patent law is not, and should not, be considered to be separate from normal law. By pretending that, you offer support to critics like Gibus. We should be aware that the entire patent system is being questioned at the court of public opinion, and, if we really intend to defend the interests of innovators and all others for whom the patent system is important, we should make our case clearly, and not haughtily dismiss the views and judgment of outsiders out of hand.

  17. Art. 118 it the article which states that "The Council shall act u-n-a-n-i-m-o-u-s-l-y after consulting the European Parliament. "?

    Who knows whether (and when) the ECJ will approve the enhanced cooperation ?

    Any clue?

  18. Why is industry not protesting louder? Here's my thought why:

    1. Germany hosts more patent litigation than the rest of the EU put together

    2. In Germany, validity is tried at the Federal Patents Court, with the appeal to the German Supreme Court (BGH) in Karlsruhe

    3. Nobody knows whether a claim is valid till the BGH has spoken

    4. The queue for a decision from the BGH is five years in length.

    So, there's the benchmark. And by the way, on issues of scope of protection and what is an infringing act, the BGH is the third instance.

    No wonder it is proving hard for UK practitioners to win the argument, that the CJEU will make things catastrophically worse than they are already.

  19. Pay-tent, see Art. 330 TFEU (concerning the criteria to be fulfilled by enhanced cooperation initiatives):

    Unanimity shall be constituted by the votes of the representatives of the participating Member States only.

    The whole point of enhanced cooperation is that it makes unanimity, well, less unanimous...

    As I understand it, the question is not whether the enhanced cooperation is compliant with Art. 118 TFEU, but whether it complies with Art. 326 TFEU:

    Such cooperation shall not undermine the internal market or economic, social and territorial cohesion. It shall not constitute a barrier to or discrimination in trade between Member States, nor shall it distort competition between them.

  20. So the reason UK practitioners won't win the argument is because the German way is the only wayand that is therefore the benchmark?

    Like I said, it would be wrong for me, as a patent professional, to comment on human rights law as proven by my catastrophic error. Guess what? I have seen bigger catastrophic errors made y highly qualified lawyers (non-patent attorneys) on patent matters. CAse proven enough to me already.

    "the criteria for validity of unitary patents remain the same as for current European patent"

    Can't possibly be correct unless the CJEU (should maybe spend more time on their cases than thinking up new names and their backlog would be shorter) decide to follow the decisions of national courts and the EPO. But then, they will never follow the reasoning of the EPO or does anyone on either side of the fence believe otherwise? And just whose national decisions will the CJEU follow? UK? France? Germany?

    If Max has anything to do with their is no argument that that CJEU will be a German court sitting in Germany with German judges making decisions which follow the previous judgements of German courts. Even though Max, you have just pointed out some major flaws in the German system.

    I prefer the current situation of progress towards harmonisation of decisions which the patent judgesare following.

    As for the removal of the 'as such' provision, if that is to be the case then firstly that is not in accord with current national practice (UK at least) or the EPO. Secondly it will be a game-changer for all potentially excluded subject-matter. Thirdly, it demonstrates that Gibus and anonymouse are inded one and the same person. Either that or it is his chum and they are ow working together to lobby the IP community into their way of thinking.

    Funy how those old 'don't be so anti-EU' comments are always thrown about so much these days, just because someone disagrees with somethin the EU are doing and that they personally agree with. The term generally used for such arguments is b******s and I believe this will soon be approved by the CJEU., so it must be correct.

  21. Anonymouse, Jacob's words come from a letter in response to the Commission legal service's opinion. Wikström has forwarded this letter to JURI MEPs. Nevertheless JURI has rejected this amendment, but it was discussed in trilogue. Other amendments, like those filed by Greens/EFA have not even been discussed.

    Am 60 is mandatory because the unitary patent cannot be anything else than a patent title created by the EU, art 118.1 does not give power to EU to do something else than creating an EU patent. This was the purpose of amendment 59 JURI to make this requirement explicit. But even without this amendment passed, the EU pature of the unitary patent is implicit. This unitary EU patent will be granted by the EPO. Threfore the EU is delegating some power with regard to the legal nature of the unitary EU patent to an external body. The Advocates General have made clear that:

    “the European Union should not either delegate powers to an international body or transform into its legal system acts issued by an international body without ensuring that effective judicial control exists, exercised by an independent court that is required to observe Union law and is authorized to refer a preliminary question to the Court of Justice for a ruling, where appropriate”

    and moreover that “the question of knowing whether a possible delegation of powers to an international body such as the EPO would be compatible with the treaties or not may also be left in abeyance [see in particular in this connection the criteria drawn by the Court in its judgment of 13 June 1958, Meroni/Haute Autorité, 9/56, Coll. 1958 p. 9 (40)]”

    The criteria refereed to are that the delegation of powers should be explicit and that the delegated acts should be compliant to the same rules as if they were performed by an internal EU agency.

    Am. 60 states that provisions of the European Patent Convention which are binding upon every European patent shall be deemed to be provisions of this Regulation. This fulfills above requirements, by submitting rules used to grant unitary EU patents to the same rules, i.e. an overview by CJEU, as if it was granted by an EU agency.

    Pay-Tent, with regard to the legality of the enhanced cooperation process, the best academic litterature I've found (this could interest Steve Peers) is:

    Lamping, Matthias, Enhanced Cooperation - A Proper Approach to Market Integration in the Field of Unitary Patent Protection? (October 20, 2011). International Review of Intellectual Property and Competition Law, No. 8, 2011. Available at SSRN.

    Anonymous@3:40:00 PM, I'm sorry but definitely, I'm not the same person as anonymouse. He knows it without any doubt, I know it without any doubt. We cannot prove it. But you cannot prove the opposite either and you doesn't demonstrate anything. If you wanna be sure, ask to our hosting kats that have access to the logs of this blog.

  22. As for the removal of the 'as such' provision, if that is to be the case then firstly that is not in accord with current national practice (UK at least) or the EPO. Secondly it will be a game-changer for all potentially excluded subject-matter. Thirdly, it demonstrates that Gibus and anonymouse are inded one and the same person. Either that or it is his chum and they are ow working together to lobby the IP community into their way of thinking.

    Oh dear. I was being sarcastic with Gibus when I "congratulated" him on proposed amendment 63, which was overwhelmingly rejected by the JURI committee of the European parliament.

  23. That's a relief anyway. Such sarcasm should be left to April 1st, but you got me there.

    But, you two gents are too much on the same wavelength to be different people. Same reasoning given but different conclusions only. One of those split personality disorders possibly, as I've never seen you both post at exactly the same time.

  24. Gibus, since it will be possible to challenge the validity of granted unitary patents at the unified patent court, which will be required to observe Union law and authorized to refer preliminary questions to the CJEU, I still don't see why anybody should consider amendment 60 "mandatory".

    Of course, the actual purpose of Engström and Lichtenberger when tabling amendment 60 was to set the whole EPC, including Art. 52(2), into EU law, so that the question of the patentability of software would eventually be referred to the CJEU, in the hope (vain, in my opinion), that it would take a more restrictive view that the EPO Boards of Appeal and most national courts to date. Be at least honest about that.

    Please note that there is already EU law on patent validity, namely in the field of biotechnology, which led to the referral in Greenpeace vs. Brüstle. The ironic thing is that if the CII Directive hadn't been scuttled, referrals to the CJEU on the patentability of software would have been justified already now...

  25. Curious Anonymous, I mostly agree with you. The point is what can be the subject of a referral for preliminay ruling from the UPC to the CJEU. The issue I'm raising is that every rule that is used for unitary patents to come to life could be the subject of a referral. I think this is mandatory since the unitary patent is a patent title of the EU. Therefore, rules used for granting this title can be at issue for a preliminary ruling. In practical terms, since this granting was delegated to the EPO which is bound by EPC rules, these EPC rules should be considered as being included in EU law.

    You're right about swpat directive and about biotech patentability being already included in EU law. What would be the CJEU's opinion about software patentability, nobody knows. But I think it is good to push this issue out of "patent circles" (i.e. patent judges, specialised patent courts) toward a jurisdiction who can base its rulings not only on patent law, but also on conflicting laws.

    In the United States, the Supreme Court has proven to be a safeguard against the drifts of the CAFC, not a very strong safeguard, but at least it has the opportunity to review CAFC cases. There is an abundant academic litterature about the fact that the CAFC has a bias towards favouring users of the patent system. The UPC should not be left without any overview if we don't want to replicate errors spawned by the CAFC. And we are currently witnessing where such errors could lead with the patent wars in the telecoms field, or the recent interest about patent trolls. Patents are very powerful weapons, they should not be authorised for any other purpose than what they were created for. We are witnessing that too many patents are serving more as massive destruction and disuasion weapons than to spur innovation. And I don't think that any specialised patent court can prevent against this.

  26. Gibus, the problem I see with taking any of your arguments on patent law, old and new, is that you have a sole interest, which is an anti-software patent belief.

    This is your goal and you want the system changed in a way that you believe (wrongly, by the way) that will result in your goal being achieved. The negative effects (real or imaginary) on every other area of innovation are not a concern of yours.

    It is for that reason that I cannot give any weight to your arguments. If you are prepared to discuss the software-patent issue that would be different, but you are using the back-door route in a self-serving manner.

  27. Thank you Gibus, that is an interesting article. It actually seems that the unitary patent is not so "strong" as the politicians say, at least according to the opinion of Mr. Lamping:

    "Enhanced cooperation in the area of unitary patent protection, as currently envisaged by the Commission and the Council, constitutes an infringement of the Treaties in a number of respects. In particular,
    (1) it is in tension with the rationale of differentiated integration;
    (2) it dismisses the protective function of unanimity with respect to language arrangements;
    (3) it relates to an area of exclusive competence of the Union;
    (4) it has a prejudicial effect on the Member States not participating, which conflicts with the requirement of openness;
    (5) it undermines the coherence of the internal market, leads to discrimination and a distortion of competition; and
    (6) it cannot be regarded as a last resort for a solution to the language issue.
    Ultimately, it is for the ECJ to safeguard the EU's credibility as a legal and political entity based on solidarity. The Commission has apparently sacrificed its function as the guardian of the principles, values and policies that integrally define the EU to the political struggle for control over the European patent system."

    Why does everybody think that the ECJ will not consider those issues?

  28. Pay-tent:

    (1): I can't even begin to make sense of that objection.

    (2): So what? Nothing in Arts. to 334 TFEU, regulating enhanced cooperation, gives special protection to language issues.

    (3): Patents are not a field of exclusive competence of the Union. Otherwise, there would not be national patents.

    (4): How are non-participating countries prejudiced? The unitary patent will have no effect on their territories, whereas their patent applicants will be treated equally to those of the participating states.

    (5): How can the unitary patent undermine the coherence of the internal market? Do national IP rights (or the Benelux trademarks and designs) undermine the coherence of the internal market?

    (6): Not the last resort? After 40 years of arguments?! You must be joking.

    In fact, those six points are merely a rehash of the arguments of Spain and Italy against the enhanced cooperation. We will see soon enough what the CJEU thinks of them, but I'm not holding my breath.

  29. The point is what can be the subject of a referral for preliminay ruling from the UPC to the CJEU. The issue I'm raising is that every rule that is used for unitary patents to come to life could be the subject of a referral. I think this is mandatory since the unitary patent is a patent title of the EU.

    But nothing in the TFEU says that every rule that is used for EU IP rights to come to life should be the object of a referral. That you wish it does not make it any more true.

    Besides, be careful about what you wish for: the possibility of a referral to the CJEU on validity would increase the cost and uncertainty for defendants in infringement lawsuits just as much as for patentees. Indeed, if we followed your argument to its ultima ratio, even applicants who see their patent applications rejected by the EPO (and there's an awful lot of them), should also be entitled to appeal all the way to the CJEU.

    If your intent is to protect third parties from frivolous patent claims, all of this could backfire very, very badly. Anything that increases the cost and uncertainty of patent litigation is a boon for patent trolls, who generally rely on defendants being readier to accept an out-of-court settlement than protracted litigation.

  30. Waoo a lot of things to reply! Let's start by the easiest one:

    Anonymous@12:08:00 AM, I'm sorry to have never hidden that I'm an anti-swpat activist. The thing is that during the swpats battle in 2003-2005, we have learnt a lot, both about the EU democratic process and the way for citizen to weight on this process, and about some structural systemic deficiencies of the European patent system. The current discussion about the unitary patent is all about these two aspects. And well, I think I'm providing some infos and alternate views to this blog's reader. I'm sorry if whatever I'm saying you cannot listen to me. But I'm happy that you don't have better counter-arguments than trying to dismiss my right to talk. I hope that, if you are a patent lawyer or attorney, you provide better arguments for your clients, because until now, I'm even wondering if you're older than my 6-years son.

    OK now interesting things. Curious Anonymouse you shouldn't reply so quickly and easily to the summary provided by Pay-Tent. Lamping's paper is really worth to read. I'm not saying that I'm sharing all of his arguments, but they make sense and go further than what I've already heard or read from Spain and Italy. Let's go through some of your too-quick counter-arguments:

    (1) This is all about interpreting the objective set in Art. 20.1 TEU, stating that “Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process”. The legal services of the Commission, of the Council and of the Parliament have publicly said this requirement was fulfilled that enhanced cooperation in the area of unitary patent, without giving any strong argument supporting this statement. On the contrary, Lamping's paper is very well documented to show that this enhanced cooperation do not reinforce Union integration process. Well, let's see how the interpretation that the CJEU will make…

    (2) It is a fact that enhance cooperation is used here to circumvent the requirement for unanimity with regard to language arrangements. The issue about language in EU is a very special but also import issue, because language is at the heart of the culture of the State (would be to long to recall here sociologists/anthropologists/linguists/philosophophers' works about the importance of language in the construction of a symbolic power monopolised by State, Bourdieu is a good start). The EU building process has always been a tension between a desire to build a supra-State and the strong forces from Member States to not leave abandon their powers. It has been decided and codified in the Treaties that language issues require unanimity. That is the solution agreed between EU Member States. I'm not saying this is a good solution. Personally, with regard to unitary patents, I don't care if EN/DE/FR, EN-only or EN/DE/FR/ES/IT is imposed. But a regulation on the unitary patent is not the proper opportunity to change the agreed complicated important choice.

    (3) Nobody has said that patent were a field of EU exclusive competence. But the creation of a EU unitary patent could be. The fact is that Member States could have use article 142 EPC all alone, while they have chosen to do it under the EU framework (which is another problem, I'm still stucked to see that an EU regulation could be considered as a special agreement inside the EPC, this is mixing a legislative normative act with an act of international law, does someone has ever seen this?).

    I'm stopping here in order to reply to last Curious Anonymouse about the requirement (in my opinion)that every rule that is used for EU patent rights to come to life should be the object of a referral

  31. OK, now about last Curious Anonymouse's comment.

    Nothing in the TFEU says explicitely that every rule that is used for EU patent rights to come to life should be the object of a referral, just as nothing in the TFEU says that it is required that rules on the powers conferred by such patents should be included in EU law. Nevertheless, the Commission has rightly interpret Art 118.1 TFEU to include such a requirement. And, while he disagreed, Robin Jacob has rightly said that if such requirement was right, then the rules on validity of unitary patents should also being part of the regulation. This is not a personal wish from me. This comes from the precise word of Art 118.1 TFEU which gives powers to EU to create a EU patent title. As a legal object of the EU, I don't think that rules used for create such objects (nor rules giving legal effects to these objects) can come from outside EU law. I haven't found something that would prove the contrary in the CJEU case-law, while case 9/56 (Meroni) referred to by the Advocates General is confirming that legal acts delegated by the EU to an international body should been controlled by the EU as if these acts were performed by an EU agency. If the unitary patent was granted by an EU agency (OHIM for eg.), the rules used by this EU agency to grant unitary patents couldn't have been external to EU law. My point is that it is de facto the same for EPC rules used by EPO.

    And about Advocates General's opinion, they have already stated that administrative decisions by Boards of Appeals of the EPO (rejecting an opposition, as well as rejecting an application) should be controlled by an independent Court. Wilfried Tillman (from EPLAW) is even on the opinion that “the EPO is already at present entitled and indeed obliged to refer such questions to the EUCJ”. So yes, I'm well aware that giving powers to the CJEU for referrals on substantive patent law can lead to some more delay and uncertainty for opposing a patent. But I do prefer a uncertain ruling taken with all time needed (and as said earlier by Curious Anonymouse or Steve Peers, CJEU is not so long) from an independent court than a quick and quasi-automatic ruling by a specialised-biased court. After all, why do we need courts and justice anymore if, as publicly declared by Prof. Veron of EPLAW, rulings were “predictable… fair as well, but first of all predictable”?

    Well, I guess this comment is already long enough, although I could have had more to reply, but I'm afraid the weight of bundle of posts & comment about the unitary patent would grow to high for the AmeriKat's shoulders ;)

  32. "I hope that, if you are a patent lawyer or attorney, you provide better arguments for your clients, because until now, I'm even wondering if you're older than my 6-years son."

    Congratulations on losing the argument in the most puerile fashion imaginable.

    Good of you to get his in at the start f your post as it save everyone the bother of reading the remainder.

  33. No wonder politicians can have their way when supposed professionals spend their time bickering. Take your constitutional quarrel elsewhere. Why not attack the UPC-system on professional grounds, rather than whether it complies with treaties? There is a big economic problem for small businesses hidden here, and it is definitely one step in removing autonomous states, certainly for the next ca. 15 years because it seems that the fate and usefulness of a fresh European patent diversifying into a bundle of national patents will be decided by an agency of a super-state.

    George Brock-Nannestad

  34. Whenever comments on software patents have been made to Gibus on this website, Gibus has always failed to respond. Luckily for the innovative community, patent attorneys tend to respond to queries raised by examiners, otherwise they would not get any patents granted. Sticking your head in the sand and only coming up to blow hot air appears to be the strategy conducted by the non-patent professionals on this blog.

    Some people should spend more time with their children.

  35. While it is not often that I agree with Gibus, placing the definition of infringement of a European Patent in an agreement on a unified patent court (Article 14f et seq.) does seem to me a very fishy way of doing business. If the European Patent is a new unitary right, be brave and write a cohesive set of provisions defining it.

  36. Doesn't the EU treay mention somewhere that the EU has no power over property ownership, and didn't the copyright case (Mcgill?) confirm this but say that they could control the enforcement of property rights if done in a way that breaches EU law?

    Doesn't this mean that a unitary patent should be outside of the control of the EU?


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