Unitary Patent Not Compliant with EU Law
During the meeting of the Committee on Legal Affairs (JURI) of the European Parliament, on Monday, November 26th, 2012, the legal services of the European Parliament have confirmed some “reservation” about the legality of the last version of the regulation, as proposed by the Cyprus presidency of the EU Council. Moreover, some doubts have been raised about the competence of the Court of Justice of the European Union to rule on the patentability of software.
Klaus-Heiner Lehne (EPP, DE), JURI chairman
So, legal service opinion now on patents. Just, say that, to some extent, it is surprising we have it on the agenda again, but the Greens did ask for this, did ask for an opinion from the legal services. They were there last Monday at the meeting, but nobody put a question. So we agreed quickly that we'd have them today to get a stance on the proposals which have been moved. And perhaps the best thing to do is they take the floor immediately and then you can put questions. I don't know who's gonna come up for the legal services? Please, you.
Legal service of the European Parliament
Yes, thank you very much indeed, Chairman. I can be fairly brief on the legal basis, 118.1 of the Treaties, and bring into line in through that. The legal services feel the compromise proposal from the presidency of Cyprus is clearly an improvement, compared to the original concept 6 to 8 being completely erased from the text. Now the regulation with this compromise at least would have a substantive coverage of material patent protection, substantive patent protection, which I think we really have to, need if we're going to have 116 [translation error, should be read: 118]. We said that in our opinion back last summer. But I think we also have to add that this compromise text has not ended all legal concerns, in particular the situation that when you look at the substance of orders having an international legal solution to patents. I mean we still have a problematic problem, a problematic situation that. Now the Commission's proposal original and the result which out to get to in the trilogue at first, I'd put it into the articles 6 through 8 in the text of the regulation itself. We think it would be, in legal terms, the more secure solution. But I'm ready to come back on that if you wish.
Klaus-Heiner Lehne (EPP, DE), JURI chairman
OK, questions misses and gentlemen: Mrs Lichtenberger.
Eva Lichtenberger (Greens/EFA, AT)
Yes thank you very much indeed for that explanation. That last time in meeting, I did say something, but, I mean, the legal services didn't get the floor after that. I said: the legal services are here, what's their opinion? I mean, I said that last time, but they didn't get the floor, just for the record. I would have liked to have something in writing actually, so that I can look at it, check it in writing, and then have time to ponder, and subsequently to discuss. My question basically is: you said there are still some concerns, not all of them have been hand out. Now these concerns, if I have understood you correctly, are with respect to having an international law based agreement. I have problems here too. We're delegating here to, for, which how can I put it? a not accessible to a movement moved from outside [translation error, should be read: delegating to bodies that are not accessible if we want to change something], at least not to the extent that should be necessary. Nonetheless you say here's improved compatibility. Obviously when compared to a complete erasure, having at least something is better than not, even if it's not totally watertight. Being not watertight, that gives us a problem, that's true. And to that extent I have a concern that we have not actually finally got rid of all problems. Second point: we do have this problem of the ruling of the Court. And here too, could you make a statement on that, as to whether the new patent court, I mean, what extent, to what extent does this, what's its relationship with the Court of Justice, The Court, normal Court? To what extent can it react to rulings of the court, the patent court react to the Court of Justice's rulings [Translation error, should be read: to what extent can the Court of Justice react to the patent court]? Thank you.
Klaus-Heiner Lehne (EPP, DE), JURI chairman
Legal services, can you say something about the Court, the Court of Justice?
Legal service of the European Parliament
Yes, well briefly. Was linked to the first issue. Obviously, points have to be put to the patent court. And obviously they have to, well we've got this in first instance, they have to assess Community law here. And then it can, if necessary, put it to the Court of Justice. And to what extent then does the Court of Justice have responsibility on patent laws? And to what extent what it rule, or be able to rule? And we have still a pending point, still to be defined. It's possible, something is put to the Court of Justice, it might say: look, basically, it is competent only for interpretation of Community law, as written in the regulation itself. But it's also possible to imagine that the Court might then, might feel that, when it has to judge whether the regulation is incorporated in European law, and it might say: well, part of, the patent law is still to be assessed in national law, so it might feel limited in the scope it can rule.
Klaus-Heiner Lehne (EPP, DE), JURI chairman
Thank you. Mrs Lichtenberger.
Eva Lichtenberger (Greens/EFA, AT)
Well, example: if a patents are given, and it regularly happens, which go a long way beyond the scope of the patent convention. Software patents for example, given that, are from patents, I mean: who reacts to whom? Which judges get to rule? Well, as I'm non, as I'm non judge, I mean which court will happen to have that one?
Legal service of the European Parliament
But first, to what extent is it, that these involve European law? That's the question. So if a European law is involved, you have to actually bring out the patent, you have to register the patent, for what to do, by the patent's. OK, well possibly yes, if that's infringe bring a case. Software patent, no, that will, would not bring a case.
Klaus-Heiner Lehne (EPP, DE), JURI chairman
OK, well, I'm not sure, Court, or legal service, concern anything if it's outside of European law[translation error, should be read: The software patent directive doesn't exist. So we need an interpretation]. Obviously if it's in European law, to the Court of Justice, if not, not. But we have to follow this a little bit further, discuss it in the coordinators group. I would like to thank the legal services for their reply to the questions. But, the same as the last week. Well, it's easy to exaggerate. This is a compromise. So I think modestly we have met the provisions of 119 [translation error, should be read: 118]. And that's the main thing, without being too ambitious. Mr Rapkay isn't here. I guess he would probably feel… Mr Baldassarre? I don't know what you gonna feel about this. But anyway we're going to discuss it later.
Translation in English by the linguistic service of the European Parliament, we transcribe and emphasis. Also our corrections to Parliament's translation, as noted inside square brackets, are made on the basis of the Parliament's French translation, which seems closer to the original text than the English one.
