Will the Fourth of July bring fireworks and the unitary patent?

One e-mail about the EP's vote read,
12 more to go....
 Good morning from the AmeriKat! The AmeriKat has been dealing with a flurry (or is that "furry"?) of e-mails over the past several days from readers alerting her to the rescheduled debate in the European Parliament on the never-ending saga that is the proposed unitary patent package. Readers may recall that the European Parliament debate and vote scheduled for the 13 and 14 June 2012 disappeared on or soon after May's Competitiveness Council meeting where, again, no agreement was reached (for the AmeriKat's reports on the unitary patent click here).

Will there be fireworks in Brussels on
the Fourth of July? 
The debate on the unitary patent package in the European Parliament has been rescheduled for the afternoon/evening of 3 July 2012 after the debates on ACTA and the 2013 budget. The scheduled vote is thought to be taking place the following day on the auspicious Fourth of July, but as of yet there is no vote listed on the agenda. The scheduled vote comes after May's Competitiveness Council where, despite all of the concerns from Member States' industry and professional bodies regarding the substantive provisions, the propaganda machine that is the European Council's press conference declared that the only remaining issue was the location of the Central Division of the Unified Patent Court.  Of course, the AmeriKat doubts the accuracy of such statements and instead regards the disagreement on the location of the Central Division as a tactical manoeuvre to avoid the passage of an inherently flawed legislative package.

Paris's Metro map:  On tube map simplicity
 alone, London should be awarded the Central Division
Although refusing to answer the question as to who was in the running for the Central Division at the press conference, the Danish Presidency and the President of the European Council, Mr. van Rompuy, were aiming to reach an agreement on the location of the Unified Patent court by the end of June. No such agreement has been made public, but there have been some rumors floating around. Recent rumors published in Europolitics suggest that of the three locations mooted - Munich, London and Paris - Munich has now dropped out of the running with Paris trumped to win the seat but with some powers being split between Paris and London. A question mark hanging over that particular rumor is how the Central Division would be split. Those in the unitary patent movement who have suggested co-opting the seat of the Central Division will no doubt have a simple solution for any proposed split between London and Paris.

The rumors come after, although doubtfully connected, to recent articles in the Financial Times regarding the location of the Central Division (here and here). Further, last Wednesday, the FT published a letter from CIPA's former president, Tim Roberts, in response their article entitled "Discord threatens EU patent decision". Roberts states that:
"We are aware of serious concerns in Sweden, Finland, Poland, Germany and other member states. The American Chamber of Commerce to the European Union has objected to the proposals. The Confederation of Swedish Enterprise has written to the Swedish prime minister that “serious deficiencies in the proposals must be remedied in order for the reform to achieve the intended effect.”
Indeed, objections to the substantive proposals is not an axe that is just being ground by the UK's industry and profession - although it is often represented as such. Sweden's industry body has been active in recent months in their opposition to the unitary patent proposals. Two weeks ago, as referred to by Mr. Roberts, Sweden's industry body - the Confederation of Swedish Enterprise - wrote this letter to Sweden's Prime Minister. In the letter, the Confederation stated that:
"The Confederation, similarly to other interested parties, has for a long time been actively engaged in promoting a European patent reform which will rectify the deficiencies in the current disparate systems at national level, increase efficiency and foreseeability, and reduce costs. Unfortunately, the proposed structure of the reform gives no cause to believe that this will be the result. On crucial points, the proposals have been severely criticised by interested parties both in Sweden and abroad. The Confederation of Swedish Enterprise, for its part, has voiced criticism in two consultation statements in 2011 and in four letters to Minister of Trade Björling in 2011 and 2012. 
The structure is not justified on objective grounds; rather, it is a consequence of concessions to domestic political interests and can be expected to have detrimental effects as regards both the unitary patent protection and the common court. Unitary patent protection will thereby entail increased risks and reduced efficiency, and lack of uniformity will continue to be a problem in the court. If users revert to applying for national patents due to lack of faith in the system, this will be a major step backwards."
The AmeriKat also heard rumors that the German patent profession and/or industry was about to make an intervention at top levels of government regarding their objections to the substantive proposals. 

The German Constitutional Court:
Who said you can't wear red satin to work?
But complaints about the substantive provisions have not been the only cause of concern regarding the patent proposals.  As readers will be aware, the issues of the legislative procedure and transparency regarding the negotiations in Brussels are also of deep concern for not only the patent profession, but the wider European community (the subject of which was taken up by Dr. Pagengberg in this letter to President van Rompuy).  Interestingly, last week, the German Constitutional Court held that it is a violation of the German constitution if the government does not inform the parliament (Bundestag) in time before a binding decision is taken about ongoing negotiations in Brussels and that the Bundestag must be informed, in writing, of each step and status of the negotiations. Pagenberg's letter and article on the secrecy of the unitary patent negotiations concerned just this point. Pagenberg highlighted recent examples of the refusal to disclose or disclose unredacted papers concerning the Opinion of the Legal Service (document here) on the compatibility of the draft agreement with the CJEU's Opinion 1/09 on the unitary patent package (article here). While it was the Council which refused to grant access on the Polish papers, the German government voted in favor of secrecy which should be enough to trigger the requirements of the provision of information to the Bundestag.   The AmeriKat understands no such information was provided to the Bundestag and as such there is a question whether Merkel has power to agree on anything on the patent package at the forthcoming European Summit. at the end of the week.  [This also reminds the AmeriKat that our UK House of Commons Scrutiny Committee should start exercising their powers to refer this issue for debate to the floor of the House of Commons.  She is sure that the IP groups will start writing letters to the Committee with this request.]

If you are in London and looking for
a good lychee martini, Cafe Boheme
is the place to go...
The lack of transparency throughout the European legislative process reminds the AmeriKat of a statement made in 1999 by Jean-Claude Juncker, Prime Minister of Luxembourg, who characterized the EU legislative process as follows:
"We decide on something, then put it on the table and wait a while to see what happens. If there is then no yelling and no opposition, because most people do not know what has been decided, we continue - step by step until there is no return." 
The legislative process is as seemingly obtuse and chaotic today as it was in 1999. Indeed, despite the upcoming vote in two weeks time, the AmeriKat has been unable to trace the most up to date versions of the Draft Agreement and Proposed Regulation (readers - can you help?). 

So will the Fourth of July see the AmeriKat celebrating the anniversary of her country's independence from European (i.e., UK) legislative powers or will it see her downing her sorrows with lychee martinis as the stranglehold of European power politics on the predictability, certainty and cost of patent protection in Europe takes hold?
Will the Fourth of July bring fireworks and the unitary patent? Will the Fourth of July bring fireworks and the unitary patent? Reviewed by Annsley Merelle Ward on Monday, June 25, 2012 Rating: 5


  1. Huh? Why does the American Chamber of Commerce to the European Union have any reason at all to object to the proposals?

  2. Your link to the German Constitutional court came up error 404 - does this one work:-

  3. http://www.bundesverfassungsgericht.de/entscheidungen/es20120619_2bve000411.html

  4. I lobbied my MP, Henry Smith Con:Crawley, on this issue last November. He happens to be a member of the EU Scrutiny Committee. I said to him that the current EU Unitary Patent proposals are flawed and that UK government should give serious consideration to them. He responded that he agreed wholeheartedly that future UK involvement in the EU was undesirable and we should have a referendum immediately. The moral of the story: be careful what you ask for!

  5. The only acceptable location is Munich and that is what the patent community wants. That Paris is not envisaged is indicated by the antagonism of Hollande against the EPO.

    I think it is safe to say, that it would be Munich - or go bust for another 10 years. The Germans want to get out of the unfair Maastricht chains and aspire a better EU deal in lights of the financial balance fraud that took place and put the South and the common currency into troubles.

    Munich killed the Luxembourg Court, it would kill a Paris/London/Milan Court as well.

    - Merit

  6. Megan - perhaps American firms have goods that they would like to sell in Europe, and they are worried that they might get stopped from doing so by a patent holder getting an injunction, years before they have the chance to show that the patent itself is invalid. Presumably this wouldn't be quite as fatal to an American firm as it might be to a European one for whom this is its home (and perhaps only) market and/or its place of manufacture; but they still wouldn't like it.

  7. Re the Anonymous June 25 10:24 comment back to Megan: "Megan - perhaps American firms have goods that they would like to sell in Europe, and they are worried that they might get stopped from doing so by a patent holder getting an injunction, years before they have the chance to show that the patent itself is invalid...."

    Just in case you hadn't noticed, this remains a flaw of the current system (particularly those national patent litigation systems that allow interim injunctions to be granted without an assessment of the merits of the patent case, whether on infringement or validity or both). Whether or not the injuncted party was American, European, Mongolian or from the moon is irrelevant.


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