Unitary patent about to being rushed straight into the wall

We have been informed that the Committee on Legal Affairs (JURI) of the European Parliament will hold an extraordinary meeting on Monday, November 19th, 2012 at 19.00 with an exchange of views on the state of play with regards to the unitary patent package. Discussions are likely to focus on a compromise found with the Council about a potential solution to the controversial removal of Articles 6 to 8 from the regulation on the unitary patent. Although the content of such compromise is not publicly disclosed, we have every reason to think that it would still not comply with EU law. Moreover, such harsh and secrecy raises serious doubts about any chance for the coming result to come up to a sound solution.

UPDATE: The text of the compromise has now been published by PCInpact. It confirms our analysis that it is not compliant with Art. 118 TFEU.

On June 29th, 2012, the Heads of State and government of the European Union have proposed to remove articles 6 to 8 from the regulation on the unitary patent. But, such a removal has been found to not comply with EU law, since these articles were defining the very substance of the rights conferred by unitary patents, namely the definition of direct and indirect infringements, and exceptions to these rights. Without these articles, the regulation would have failed to define the minimal substantive rights attached to the unitary patent, in contradiction with the legal basis in EU treaties which authorizes the EU to create such an unitary patent. Therefore, the European Parliament has rightfully declared this removal unacceptable and has postponed its plenary vote on the project. The confessed purpose of this removal was to avoid any overview by the Court of Justice of the European Union (CJEU) on issues of substantive patent law.

Since then, the Council has tried to find an unlikely solution to the dilemma of escaping CJEU review while being compliant with EU Treaties. According to unofficial information we've got, the diplomatic agreement reached by the Council would be based on the substitution of explicit provisions of Articles 6 to 8 by a mere reference to the equivalent provisions of the Agreement on a Unified Patent Court (UPC).

Such a solution would still not comply with EU law , agreement on UPC being an international convention, outside EU law. This has been anticipated by the Max Planck Institute for Intellectual Property & Competition Law in a strong critic of the unitary patent package:

The European patent with unitary effect is split into different layers of international law, EU law and national law. The cross effects between these layers are unclear. Examples include the reach of EU law primacy vis-à-vis the EPC or the role of national law vis-à-vis the UP Regulation. The complexity would even be reinforced should the substance of protection become hidden behind a system of legal referrals replacing Arts. 6 to 8 of the UP Regulation, as is currently discussed as a compromise formula.

The explanation is given by Prof. Dr. Hanns Ullrich of the Max-Planck Institute:

Article 118 para. 1 TFEU authorizes the European Parliament and the Council to establish in accordance with the ordinary legislative procedure measures for the creation of European intellectual property rights in the context of the establishment and the functioning of the Internal Market. As a competence, which has been specifically attributed to the Union in addition to its competence of harmonization of laws (Art.114 TFEU), it has a particular political objective of advancing market integration, which the Union legislator cannot simply delegate to international consensual agreement among (or to subsequent modification by) Member States. Such delegation would undercut both the institutional rules [Not only will the Parliament have no saying either now or at a later stage of an eventual revision of the UPCt-Agreement, but the majority rules (Art. 16 para.3 TEU; Art. 238, 294 TFEU) will be replaced by consensus both between Member States and between their Parliaments.] and the political autonomy of the Union.

Alongside these serious issues on the merits of such a potential compromise, the way it is proposed by EU institutions raises concerns both for citizens and for enterprises. Indeed the haste and secrecy surrounding this negotiation increase doubts on its viability. Council document is not available to the public. Nothing has been published by the European Parliament until Thursday November 15th, with the announce of JURI extraordinary meeting, while the only working day left between the publication of the agenda and the date of the meeting is a noteworthy quite day in European Parliament — usually quasi-desert on Friday.

The only public statement that a compromise was about to be discussed by the European Parliament has been made by JURI chairman, German conservative MEP, Klaus-Heiner Lehne, during a keynote given on a conference organised by the law firm Taylor Wessing – which Lehne is also a paid partner. As reported by a patent lawyer's blog, Lehne has declared that:

It seems that the Parliament’s legal advisers have given a “green light” to this proposal, and have confirmed that the requirements of European law have been fulfilled. Mr Lehne was hopeful that the “problem will be solved” by the end of this month, and that it would formally go to the Parliament before the Christmas break.

This is all the more worrying since, to the best of our knowledge, JURI MEPs have not been informed that something has been officially referred to the legal service of the European Parliament, let alone the content of such a referral.

Moreover, it is reported that:

Mr Lehne reiterated that there was not a chance, at this stage, to change much in the two regulations or in the intergovernmental agreement.

Such a blatant denial of the Parliament's rights of amendment would be a crying shame, but it is unfortunately not very different from instructions given to JURI members' first vote on the unitary patent, back in December 2011.

Given these severe grounds for concerns, we urge members of JURI to not agree to anything on next Monday's meeting, before the substance of the agreement has been analysed with required proper carefulness. Citizens can contact JURI MEPs using the free tool we've set up for this purpose.

As recalled by Michel Rocard and Daniel Cohn-Bendit:

What is at stake is the urgent need for a Europe, which suffers from a growing democratic deficit, to not waive its power for the benefit of a body, the Patent Office in Munich, whose mission is not to act in the best interests of European businesses and citizens.

UPDATE: The text of the compromise has been published: