European unitary patent: Parliament's resumption of discussions suspended to the opinion of its legal services, an AEF news

After the European Parliament has decided, in early July 2012, to postpone its plenary vote on the unitary patent, and hence after that its committee on Legal Affairs (JURI) is about to to reconsider the case, AEF, a specialised French press agency, has realeased three news taking stock of the current situation. Courtesy of AEF, we translate here the first news, which deciphers the legislative process. You can also find an interview of Gerald Sédrati-Dinet, adviser on patents for April, a French advocacy association devoted to promote and protect Free/Libre Software, and a revelation of a report by Parliament's legal services.

DECYPHERING. European unitary patent: Parliament's resumption of discussions suspended to the opinion of its legal services

Anne Roy
Field : Research and Innovation
Category : News - Intellectual Property - Parliament - European Union

“JURI Committee” (Committee on Legal Affairs) of the European Parliament, is still expecting, as of Monday, September 10th, 2012,the opinion of legal services on the impact of the decision taken by the Heads of Government at the European Council on 29th June 2012, to remove Articles 6 to 8 of the regulation establishing a European unitary patent. “The patent regulation will certainly not be discussed at the next committee meeting” on 17th and 18th September 2012, indicates accordingly to AEF services, Bernhard Rapkay (S&D, Germany), Member of the Committee and Rapporteur for the legislation, without specifying what options are being considered for further negotiations. Indeed, this item is not included in the draft agenda of the next meeting of the Committee.

Legislation on the European unitary patent, currently under discussion, is a “package” which includes three aspects. The first legislative component implements a system of unitary patent protection (Rapporteur: Bernhard Rapkay1). The second part determines the proposed scheme for the translation of European patents (Rapporteur: Raffaele Baldassarre, EPP, Italy). The third part is an international agreement to create a unified court patent (Rapporteur: Klaus-Heiner Lehne, EPP, Germany).

Only the first part of the project is subject of an adoption by co-decision (where there is a vote by the European Parliament). The two other parts are subject of an agreement between the Member States (all EU Member States, except Italy and Spain), the Parliament being jest referred to for an opinion.

SEVERAL DECADES OF NEGOTIATIONS FOR A UNIFIED SYSTEM

Since the Munich Convention, ratified today by 38 countries, was signed on October 5th, 1973, a company or an individual who wishes to file a patent has two options, says French MP Philippe Cochet (UMP) in a communication to the French Committee on Foreign Affairs (AEF No. 162282). Either “she makes distinct filing before each and every national office for intellectual property of all Member States in which she wants to protect its discovery and translates the text in all the official languages of these countries”. Or, “from an application written in one language - English, German or French - the European Patent Office may issue a bundle of national patents, which are valid in as many countries as designated by the applicant among the signatories to the Munich Convention”. For the deputy, this second alternative is “complex, implying legal uncertainty, and costly” because “the inventors seeking a patent in several countries are required to translate it into each national language concerned”.

Therefore, for the sake of the competitiveness of Europe, about which he is concerned that “Europe is lagging behind the United States and China in terms of number of granted patent”, Michel Barnier, European Commissioner for Internal Market and Services, wishes to achieve its proposed unitary patent, the latest proposal after a series of failures of the European Union to agree on its terms. According to the Commissioner, the reform “will create a simplified filing procedure, (…) will greatly reduce the costs of patent protection. All future unitary patents will ultimately be available in all official languages of the EU, which will allow the transmission of knowledge and will benefit to inventors”.

APPEALS AGAINST THE ENHANCED COOPERATION: HEARINGS ON SEPTEMBER, 25TH

But it is precisely the language issue that the 27 Member States of the European Union failed to agree on. Also, as the Lisbon Treaty gives competence, on December 14th, 2010, at the request of twelve Member States, including France, the Commission has agreed to launch an “enhanced cooperation” (agreement between several Member States) in the field of the unitary patent protection. Thirteen other Member States have joined thereto, the European Parliament has given its consent on February 15thn 2011 and on March 10th, the “competitiveness” Council has authorized the launch of the enhanced cooperation procedure with the participation of 25 Member States.

Two countries remained outside the process, Italy and Spain, who have filed an appeal before the CJEU (Court of Justice of the European Union). Court hearings on the subject are planned on Tuesday, September 25th, 2012 in Luxembourg.

WHICH ROLE FOR THE COURT OF JUSTICE OF THE EUROPEAN UNION?

On March 8th, 2011, the Court of Justice of the European Union, on the request of the Council of Ministers of the EU, has given a negative opinion on the draft agreement for the establishment of a European patent court (the third part of the “package patent”), which the Court does not consider to be in compliance with Community law (AEF No. 146615). The Court's main objection is that the patent jurisdiction would have been independent from the European jurisdiction. “The second version of the text, which was adopted by the Council on June 2011, has therefore postulated the existence of an independent court which may refer questions to the CJEU”, explained to AEF Jean-Christophe, Co-Chair of IRPI (the French Institute for Research on Intellectual Property), in early July 2012 (AEF No. 169183).

Thus, in December 2011, a “trilogue” (informal tripartite meeting) between the European Commission, the JURI Committeen and the Council, has agreed on the first two parts of the “patent package”, on December 1st, 2012. Then, the only officially remaining issue was than the third part, with the only point of disagreement beeing the location of the headquarters of the future European Patent Patent, where France, Germany and the United Kingdom were competing for.

JURISDICTION SPLIT UP BETWEEN PARIS, MUNICH AND LONDON

After being postponed several times, the decision has been taken during the European Council of June 29th, 2012 (AEF No. 168862). The agreement reached by the Heads of Government of the concerned Member States specifies that the “seat, along with the office of the President of the Court of First Instance, will be located in Paris”. The agreement also provides for the creation of two specialized sections of the central division, one in Munich, Germany, for mechanical engineering, the other in London, UK, for chemistry-pharmaceuticals, and human necessities,

But to reach this agreement, the British Prime Minister, David Cameron, has got that articles 6-8 be deleted from the first legislative part, the regulation for the implementation of the unitary patent system, that was adopted by the trilogue in December 2011. Michel Barnier welcomes nevertheless “a decisive step towards the creation of a unitary patent and a unified patent court in Europe”.

“Article 6 defines a direct violation of a unitary patent, Article 7 defines an indirect violation, and Article 8 defines limits of the rights conferred by such a patent”, recalled a few days later the European Parliament. Thus, they define the scope of the right granted by a unitary patent. If they are included in the regulation, they are part of the corpus of EU law and the CJEU has jurisdiction to determine whether a judgment in a litigation over a unitary patent complies with the Treaties. Otherwise, if they are no longer defined by the regulation (first part of the package), but only in the international agreement establishing the unified patent court (third part), the CJEU has no competence and decisions by the unified and specialised court would be without any possibility of appeal.

PARLIAMENT POSTPONES ITS VOTE AND REQUESTS OPINION FROM LEGAL SERVICES

On Monday, July 2nd, 2012, the European Parliament has unanimously decided to postpone until mid-september the debate and the vote on legislative proposals of the European Commission on the European unitary patent, which were originally scheduled for the plenary session of Wednesday July 4th, 2012 (AEF No. 168965 and 169446). In the meantime, it intends to seek the opinion of legal services of the European Parliament.

“It is not only a matter of procedure”, said at this occasion MEP Bernhard Rapkay before the Parliament. “It's really a matter of substance. Because, in the opinion of many here, the Council, in the negotiations, had already wanted to delete these three articles. It is a violation of European law! They want a regulation but they precisely delete three articles which explain how this regulation works”. Then he said in a press release that he believes that “the European Council's move to delete 3 key articles from the long-awaited EU patent regulation, greatly [reduces] the European Court of Justice's power to enforce it, infringes EU law. If you take that content out, there is nothing left to regulate”. MEPs also criticise the Council to go back on the trilogue agreement reached in December 2011 and underline that it was “the first time” that a player goes back on this type of agreement, which is informal but common in European procedures.

Contacts :

• Michel Barnier, Commissioner in charge of the Internal market and Services, Chantal Hughes, Spokesperson, +32 (0)2 29 64450, chantal.hughes@ec.europa.eu
• Bernhard Rapkay, +32 2 28 47593, bernhard.rapkay@europarl.europa.eu, www.rapkay.de
• IRPI, +33 1 49 23 58 80

Read also in the news:

• European unitary patent: “If there is no patent, it is the fault of the Council of the EU” (Bernhard Rapkay, rapporteur for the Parliament)
  AEF n° 169446 of Wednesday, July 11st, 2012 - RI
• European unitary patent: “A complex, incomplete and very poorly drafted system” (Jean-Christophe Galloux, Irpi)
  AEF n° 169183 of Tuesay, July 10th, 2012 - RI
• URGENT. Unitary patent: European Parliament unanimously decides to postpone the debate and vote in mid-September
  AEF n° 168965 of Monday, July 12nd, 2012 - RI
• URGENT. Jurisdiction of unitary patent: Paris chosen to host the Central Division, with two specialised centers in London and Munich
  AEF n° 168862 of Friday, June 29th, 2012 - RI
• The OECD recommends the creation of a European unitary patent “to reduce the cost of patenting in Europe”
  AEF n° 164508 of Tuesday, March 27th, 2012 - RI
• Unitary patent: “Paris has all the required advantages to host the European court” (Philippe Cochet, MP, UMP)
  AEF n° 162282 of Friday, February 10th, 2012 - RI

© Copyright AEF - 1998/2012 - 59233 for French version

• 1. See here, the report “on the proposal for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection”; here, the report “on the proposal for a Council regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements”; and here, the report “on jurisdictional system for patent disputes”.
  See here the details of legislative procedure of the European Parliament.