On-off-on: it's European patent deal day ...

Every blogger's nightmare is the sudden occurrence of a really big news item which everyone else seems to get to before he can. This scenario is not unique to bloggers, though. It is shared by all members of the media whose contributions, though of substantial significance at the time, soon fade in terms of their interest value. This Kat well recalls a BBC TV interview many years ago with the obituary writer for The Times, the doyen of British obituarists in his generation. After answering a variety of questions relating to the methodology employed in creating and updating obituaries, he was asked one final question: "In all your days as obituary writer for The Times, have you ever had any regrets?" He gave the shocking response: "Yes. I was on holiday the daWhat y they shot John F. Kennedy".

This Kat feels a bit like that himself, since he was offline and with not a sniff of a computer connection for several hours while the rest of the IP fraternity, not omitting his PatLit blogging companion Michael Thesen, all the way from Germany, were making merry with the news that David Cameron has finally taken the initiative in blocking the famously and controversially flawed European patent deal. Following yesterday's post on the position taken by a generally unknown but suddenly influential Parliamentary Committee that the proposals were "not fit for purpose", this decision was understandable, even if it's fair to say that few of us -- even those who practise the occult science of hindsight -- could make a plausible claim that this was ever likely to happen.

The interesting question is what happens next.  Since there are no votes in patents, it is fair to assume that David Cameron is acting out of conviction that he is right to do so, rather than on a whim.  Indeed the fact that, if the report is accurate, David Cameron offered to drop the call for the court to be located in London in exchange for the Court of Justice of the European Union being stripped of its ultimate jurisdiction in European unitary patent matters supports the theory that the man is acting with the interests of the patent community at heart, rather than simply those of the British. However, even as this Kat writes, word is emerging via Twitter that an agreement has been finally achieved.

From a domestic UK point of view, there remains plenty to discuss, regardless of the final deal.  Can it be that, with the gentle drip-drip-drip of information about the importance of IP finally making its mark on the solid rock of political apathy and unconcern, the need to prioritise a fair, workable and value-adding IP system has now been recognised?  And is the Prime Minister, like a lion emerging from the shadow of a mouse, taking the reins of the IP portfolio from the deeply embattled Baroness Wilcox?  In the latter case, will he be receptive to further IP policy proposals, not least of which is the speedy establishment of an equivalent position to the Intellectual Property Enforcement Coordinator in the United States?  We will no doubt soon find out.
On-off-on: it's European patent deal day ... On-off-on: it's European patent deal day ... Reviewed by Jeremy on Friday, June 29, 2012 Rating: 5


  1. Please, please, please no links to twitter - some of us don't use that medium and don't want to use it!

  2. Bonjour Paris!

    When two people quarrel, a third rejoices.

  3. Sketchy details to be found here.

    Quote follows:-

    Heads of State or Government of the participating Member States agreed on the solution for
    the last outstanding issue of the patents package, namely the seat of the Central Division of
    the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office
    of the President of the Court of First Instance, will be located in Paris. The first President of
    the Court of First Instance should come from the Member State hosting the central division.

    Given the highly specialised nature of patent litigation and the need to maintain high quality
    standards, thematic clusters will be created in two sections of the Central Division, one in
    London (chemistry, including pharmaceuticals, classification C, human necessities,
    classification A), the other in Munich (mechanical engineering, classification F).
    Concerning actions to be brought to the central division, it was agreed that parties will have
    the choice to bring an infringement action before the central division if the defendant is
    domiciled outside the European Union. Furthermore if a revocation action is already pending
    before the central division the patent holder should have the possibility to bring an
    infringement action to the central division.

    There will be no possibility for the defendant to
    request a transfer of an infringement case from a local division to the central division if the defendant is domiciled within the European Union.

    We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the
    area of the creation of unitary patent protection to be adopted by the Council and the
    European Parliament be deleted.

    Any ideas as to what happens next? Will it survive [EU or UK] Parliamentary scrutiny?

  4. The content of the deal is online at -


    Apart from the complexities of cutting the court into three bits, the deal includes dropping Arts. 6-8 of the main unitary patent regulation. The EP still has to agree to the latter point, of course.

    The argument that the EU's Court of Justice should have no jurisdiction begs the question. Since the patent court will be a court common to a group of Member States, the normal rules on references for preliminary rulings relating to EU law have to apply - see the Court's Opinion 1/09. However, dropping Articles 6-8 of the Regulation will presumably decrease the number of references for a preliminary ruling that the patent court would otherwise make to the EU's Court of Justice, since there will be fewer links between EU law and substantive patent law.

  5. http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/131388.pdf

    Court agreed and Articles 6 to 8 to go. See third page.

  6. Twitter links are fine - obviously you don't have to click on them if you don't like them!?

  7. Answering the question about parliamentary scrutiny (in part) - The EP can block the changes to the main patent regulation (ie dropping arts 6-8). It cannot block the patent translation Regulation. Formally the EP does not have any real role as regards the patent court treaty, but if it disagrees with the content of the treaty it could always block the main patent regulation. It is due to vote next week already, but conceivably that vote could be delayed.

  8. The blog GermanIP is quoting a Deutsche Presse Agentur report, which suggests inter alia that the London office will also handle administrative matters (rather than Munich as previously trailed).

    The official communiqué appears to be silent on this; it's possibly just a slip by the DPA journalist under pressure to get their copy in quickly

  9. Removal of arts 6-8 by the EP shouldn't be seen as a done deal.

    The EP is above all a European institution, rather than an inter-governmental institution. It's part of its fundamental political DNA to get laws put onto a European basis (in which it itself then becomes an essential part of the system), rather than an inter-governmental basis (where revisions can be negotiated without it having any say).

    There is also a populist tendency to paint the "patent industry", in particular the EPO, but potentially also any specialist patent courts, as having run completely out of control, answerable to nobody, and therefore a claimed need to retain a generalist court as the ultimate arbiter at the very top of the tree.

    More knowledgeable heads than mine can probably advise on this, but in agreeing to "suggest" to the EP that Arts 6 to 8 be deleted, the Council appears not to be binding itself to press the point if the EP says "thanks, but no thanks".

    Indeed, if I remember correctly, it was a national delegation -- the French -- that originally forced the inclusion of the ECJ in the structure; and there is some argument that the substantive patent law may already fall within the ECJ's proper ambit, because of the existence of European law on enforcement.

  10. Arts. 6-8 dropped? Now, THAT is a fudge! I wonder if that will pass the scrutiny of either the EP or the CJEU. What I am certain is that the anti-software patent crowd is going to throw a fit.

  11. Meow! I now know what a dog's dinner looks like.

  12. Clearly a London seat is unacceptable. It it time to end the humilation of Germany and get it the appropriate role in the European Union it deserves. You cannot leave patent policy to the British judges.

  13. A tri-language (EN/DE/FR) patent issued by a tri-country office (DE/NL/AT) enforced by a tri-"central"-court (FR/UK/DE)?
    Not really that unitary, is it?
    Couldn't we call it the tri-patent or, oh no, the troika-patent?


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