European politicians like to have long summer holidays, but come September they will be back at work and dealing with the wide range of major problems that currently afflict the continent. Although it may well be pretty far down the overall agenda, one issue that has exercised the patent community in the EU and further afield is the fate of the unitary patent and court.

The issue was supposed to have been decided by now and many thought that it had been at the end of June when after a meeting in Brussels a communique issued by the Council of Ministers reported the following:

Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.

Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).

Concerning actions to be brought to the central division, it was agreed that parties will have the choice to bring an infringement action before the central division if the defendant is domiciled outside the European Union. Furthermore if a revocation action is already pending before the central division the patent holder should have the possibility to bring an infringement action to the central division. There will be no possibility for the defendant to request a transfer of an infringement case from a local division to the central division if the defendant is domiciled within the European Union.

We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.

Soon after the meeting, however, it became clear that the insertion of the final paragraph – which had been done at the very late insistence of the British government – was going to cause significant problems at the European Parliament, which has to approve the Brussels agreement before it can come into force. In fact, MEPs were furious that the paragraph had been inserted. Just how angry they were and why is explained very clearly in a paper that has been put together by German patent lawyer Ingve Stjerna. In short, many influential MEPs felt betrayed, to the extent that they are likely to vote against the agreement in its current form.

If that does happen, then British Prime Minister David Cameron, who came back from the Belgian capital proclaiming a victory, will have a very big call to make - one that could basically decide whether the EU patent lives or dies. He could either accept the vote and withdraw the UK's opposition to Articles 6-8; or he could reject the vote, something that would cause deadlock at best or could even see the UK walk away completely. Given the prevailing Euro-scepticism in the Conservative Party Cameron leads, an acceptance is highly unlikely even though the UK stands to gain from the creation of the specialist court in London.

For those thinking that the UK’s departure would not mean the end of the unitary patent project, Stjerna has some ominous words:

However, it appears to be impossible to implement the “unitary patent” and the court system without the UK as one of the most important European patent jurisdictions. Furthermore, there are voices indicating that the entering into force of the agreement on the court system, according to the present plans, would require ratification by 13 of the participating member states, with ratification by some countries, including the UK, being coercive.

In other words, if the UK does not ratify (and I suspect the same applies to France, Germany and a few other key jurisdictions), then legally the patent and court cannot be created. If that is the case, the vote that the European Parliament takes and the way in which the British government responds are basically a matter of life or death for the unitary project. In the end, it could very easily come down to one man making a decision based almost entirely on domestic political considerations that have absolutely nothing to do with patents. Now isn’t that a cheering thought?

Sectors

IP politics, IP litigation, Patents

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