You made this mess, you clean it up: JURI pass the buck to Council to resolve the deadlock on the unitary patent

The AmeriKat looking up at
Lord Justice Kitchin in awe during
his speech last Thursday

While digesting her dinner at the CIPA President's Dinner on Thursday evening, the AmeriKat enjoyably listened in awe of Lord Justice Kitchin as he expounded on the many issues with the unitary patent that have yet to and desperately need to be resolved before the system can be a success. The speech, which is soon to be published on CIPA's website and in October's journal, came the evening of the first debate on the unitary patent by the Legal Affairs Committee of the European Parliament (JURI) after their summer recess (video here from 11:14).


Readers will recall that before the summer recess the Committee agreed that the Legal Services would spend the summer analyzing and fine-tuning their thoughts on the problematic issue as to whether it was necessary under European Law that Articles 6 to 8 be included in the Proposed Regulation under Article 118 TFEU.

It was therefore only right that the first party to be given the floor during the Committee's Thursday morning session was the representative of the European Parliament's Legal Services. However, despite the long summer recess the answer from the Legal Services demonstrated that matters had progressed little:

Lord Justice Kitchin 

"As things currently stand all we can say is that the situation is the same as it was before the summer break. I can refer to the position that we had when we presented our opinion to the Committee before the summer. Now the deletions of Articles 6 to 8 from the proposed text of the Regulation would mean that an essential part of the Regulation would disappear, namely an arrangement which would protect the single patent in the European union and the material law. We take the view that this is an aspect which the legislature needs to clarify under Union law, otherwise there is the danger as far as we are concerned that the Regulation will not be compatible with the Commission's proposed legal base which is Article 118 TFEU and that means there would be a risk that the Regulation be struck down by the CJEU or could be struck down by CJEU."

MEP Bernhard Rapkay took the floor next. Although he predictably took the Parliamentary line of expressing dismay in how the Council's June agreement cut through the entire legislative process, his response was more or less pragmatic and more measured than what his previous performance had been during July's JURI session. His main request was that the Council provide justification as to why, under European Union law, the inclusion of Articles 6 to 8 was not necessary. Rapkay, after thanking the Legal Service, stated:

"The Legal Service as I have understood it has asked to us not to deal with this in the first meeting after the summer break but for us to take our time so that they have time to consider the pros and cons. The Legal Service has done some very good work here and they are recommending we stay with the result that we have. Now we have a really good Legal Service and I don’t think that the same can be said for all the other institutions because we discussed this one year ago and we asked the other Legal Services exactly the same questions and the Commission's Legal Service gave the same information as our Legal Service has given and there was a third Legal Service present as well at the time and they did not contradict this. I remember how they were just nodding their head at the time and then all of a sudden things are now different. Back then they said one thing and now they are saying something different and now this is the point where we really need to discuss things.

What I can see is the European Council in its decision in June went over and beyond its competence. It intervened in a legislative procedure and I think that is going over and beyond its competence. The decision that it took in fact flies in the face of European law and those two points are worth mentioning. But as you know, Chair, I am extremely pragmatic in my approach and I know that its not really possible to get a fair solution with Council and I think the right solution would be to leave Articles 6 to 8 in the text, but that is no longer possible I know, so its against that backdrop that we have to work out how to get out of this sticky situation because as far as Council is concerned it’s not really a tangible argument. There are a number of countries that are just as against this but they say "our political masters have decided in a particular way and we have to respect that decision", but those political masters are not our political masters – they might be seen that way in the Council but they are not our political masters in Parliament and we need to decide how we react to this new state of affairs.

MEP Rapkay

I have sent a letter to the Cypriot Presidency and I would just like to expressly say that the Presidency is doing what it can and its not their fault that others have given them the hot potato to deal with. They were not all that well prepared because it really wasn’t their task to take this on as such so I have to say that the Cyprus Presidency is being cooperative as far as the Parliament is concerned and I know what pressure they are under. I also know what pressure we are under, namely to make sure that the work we deliver is clean and in conformity with European law. I have [therefore] said in my letter that I would like to have a proper justification in terms of European law why it is that the Heads of State of Government wish to delete points Articles 6 to 8. I know a number of patent lawyers have a view which is based on facts about this but that’s one thing. You can have pragmatic arguments about this but it has to be in conformity with European law. The arguments that lobbyists put forward are not really related to European law, they are related more to patent legislation so I would like to have a justification in conformity with European law as to why this route was chosen by the Heads of State.

I know for pragmatic reasons we will not just be able to return back to what the status quo was in December 2011. We need to find another solution but that really is up to Council. That is their task. They are the ones who broke the previous agreement. We weren’t the ones who did that. Whatever the solution is one thing has to be clear. We won't accept just any old proposed solution that comes form Council . I understand this argument.

The legislative procedure that we are in is one where Parliament and Council have to come to an agreement. End of story. So, we need to work out where our red lines are. This comes back to what I said earlier on and what the Legal Service have just confirmed. Namely that the red line is that we will not accept [just] any proposal and we cannot accept [just] any proposal. The President of Parliament cannot sign any proposal for a Directive which is not in conformity with European law. That therefore is a red line. There are two particular points where this is very clear. There is the question of what the position is with the CJEU on this point. That is one of the controversial points. And so the opinion of the CJEU or their position on this needs to be in conformity with EU law and the treaties. Secondly, given what I have heard in the various discussion there needs to be some arrangement which means that Parliament is not cut out of the picture in future and our rights are protected. We will not be able to accept any solution where we give up our right legislate to someone else, whomever that is. The President of the EU Parliament will never be able to sign up to that sort of thing where it cuts the Parliament's rights out of the picture. Those are our red lines. Parliament needs to be completely clear about that.

If [Council's] proposal does not respect those red lines then they will still be the ones to blame if we still don't have this Unified Patent which we so desperately need. That’s the state of play. It is up to Council not up to us to come up with proposals. We will take a look at proposals and evaluate them and we will see to what extent they respect the red lines that I have just mentioned. "

Cecilia Wikstrom then took the floor optimistically saying that everyone has the potential to come to an agreement. Her optimism was then rebuffed by Austrian MEP Eva Lichtenberger who said that she considered there was a trend emerging whereby Parliament works on legislation that soon becomes hollow after negotiations. She said that Council needed to recognize that "they have backed the wrong horse" in the proposed deletion of Articles 6 to 8.  She considered that the solution would be found if the Commission came up with a new proposal with a different legal basis. Only then would they be on the right track. She said that Parliament could not agree to a situation where Council removes the "real heart and soul" of the agreement.

MEP Zwiefka

Polish MEP Tadeusz Zwiefka then explained that perhaps the divergence between the two institutions came about  because Council is "not used to this situation where they have to co-legislate with Parliament" ("Is anyone used to this legislative procedure" asks the AmeriKat, because no one seems to know what comes next and by whom."). Notwithstanding this, he stated that

"We simply cannot be dictated by the Council on such a complicated issue. That is simply not possible as a working method. Its not in line with our customary ways of working and its not in line with European law. Lets try to bring the work we have done to a satisfactory end and make our voices heard."

In closing JURI Chair Mr. Lehne stated that it is was essential to defend Parliament's rights. He also stated that whether informally or formally with Council, elements of the Regulation will be discussed with them in detail and it was important to establish Parliament's position clearly. He also stated that Parliament "must make sure that the text agreed is available so everyone is clear as to what we are negotiating on." The AmeriKat wonders if that really means "everyone". She suggests that if the Parliament wants all parties to work together to come to a solution, they would be well advised to publish the draft Regulation as agreed so that all parties and the public had the facts before entering negotiations (Kate note:  there is an updated consolidated Draft Agreement that was published on Thursday here). 

In summary, it seems that Parliament is calling on Council to come to a solution, i.e. "you created this mess, you get to clean it up."

Will we see a proposal from Council before
this Kat-themed Jack O'Lantern turns
to mush?

The parties have only three weeks to progress the negotiations before the next JURI meeting on 6 November (a few days before the Rules of Procedure Committee meet on 10-11 November to produce the 10th draft of the Rules in advance of the official public consultation). The AmeriKat hopes that during this time national governments who have opposed the inclusion of Articles 6 to 8 and who share other substantive concerns with the proposals prepare detailed reasoned submissions why such concerns are necessary to be resolved under EU law.She understands many national governments, including the IPO (who have a stakeholders meeting tomorrow to discuss the current state of play), have prepared such papers (although the public status of these papers is not yet clear). 

Creatively musing, the AmeriKat wonders whether because the main underlying effect of the other substantive defects in the proposals (forum shopping, ability to staff the courts with qualified judges, applicability of bifurcation, etc) would/may lead to the un-uniform application of IP law across the unified patent system (and the Union) would those provisions in the current proposals fall foul of the intention set out in Article 118 that the measure provide uniform protection? Might that be a way to sneak them into the current round of negotiations to see if the parties can get those defects fixed?  

In the meantime, the AmeriKat, who is preparing for AIPPI in Seoul this week, will be awaiting the next move from Council.