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Major breakthrough in EU patent negotiations set to be announced - UPDATED

I have just received this press release from UK law firm Bristows:

Tonight following a special meeting of the JURI Committee of the European Parliament in Strasbourg, Commissioner Barnier is expected to announce a major breakthrough in the long-running saga of the creation of a Unitary European Patent and Unified Patent Court.  The announcement will herald agreement between Council and the European Parliament leading to the adoption of new legislation to create the new system by April 2014.

New development

Today, 19 November, the package, including a compromise on the wording of the Unitary Patent Regulation was agreed by Council (via Coreper) , and at a meeting this evening of the Juri (Legal Affairs) Committee of the European Parliament which will be attended by Commissioner Barnier, the Committee is expected to rubber stamp its agreement to the package, including the Unitary Patent Regulation with the following timetable to follow in consequence: 

• Approval of the Unitary Patent Regulation by the Council of Ministers on 10 December

• Plenary vote in Parliament on 11 December to approve both Regulations

• Adoption of the Unitary Patent and Language Regulations by 21 December

• Signature of the Treaty establishing the Unified Patent Court on 18 February 2013.

• Ratification of the UPC Treaty from February 2013 onwards - UK, France and Germany and 10 other states need to ratify to bring the Agreement into force.

The Commission believes that ratification will be achieved by 1 November 2013, allowing the first unitary patents to be issued by April 2014, with the Unified Patent Court also being set up by this date.

Commissioner Barnier will publish his speaking points later and be available for short interviews after the JURI meeting.

There is at least one other legal hurdle in the way, however.  Italy and Spain have challenged the legality of the “enhanced cooperation” process at the European Court of Justice.  An Advocate General’s opinion is expected from the ECJ on 11 December, which will give a good indication of the ultimate decision of the Court in 2013.

Alan Johnson, partner at law firm Bristows, commented:

“The agreement to the Unitary Patent Regulation is a major step toward a completely new patent regime for Europe which will have very considerable implications for innovative industry.  Many in industry are concerned that in the last few months, proposals for the new system has been rushed through as a matter of political expediency without considering the full implications.  At a recent conference held at UCL, an impromptu vote among industry representatives revealed that none of those present wanted the new system in its present form.  Whether the numerous practical problems identified will make for a system which is cheaper and better, or in fact worse and more expensive, that the present national systems, remains to be seen.”

UPDATE: The Cypriot government, which currently holds the presidency of the European Council, issued the following press release on 20th November:

On Monday November 19, the Member States participating in the enhanced cooperation reached unanimous agreement on the Unitary Patent Package at the meeting of the Committee of Permanent Representatives (Coreper I).  Later in the same evening, an extraordinary meeting of the Committee on Legal Affairs of the European Parliament (JURI), took place in Strasbourg where MEPs expressed overwhelming support for the proposal agreed by Member States. Given these positive developments, there is wide spread optimism that the first European unitary patent could be introduced early 2014.

The agreement reached within Coreper and JURI yesterday was based on a shared wish to boost the global competitiveness of the EU innovation industry and to demonstrate the capacity to deliver instruments at the European level which can play a decisive role in helping the European economy especially in times of economic crisis. The effect of the final adoption of the unitary patent package would mean a unitary patent title common to EU Member States less expensive and simpler. The new system ensures more efficient patent protection for businesses, especially Small and Medium-sized Enterprises (SMEs), in the EU.

The negotiations on the patents package reached a crucial point in June’s European Council where for the sake of compromise upon the seat of the central division of the Unified Patent Court (in Paris, London and Munich), the Heads of States and Governments decided to delete Articles 6-8 from the Patent Regulation which was an agreed text with the European Parliament at first reading agreement in December 2011.  The challenge of Cyprus Presidency was to regain the trust of the co-legislator and achieve a compromise text which ensures that the overall patents package remains a legally sound and solid text, complying with EU acquis.

Positive signals from Parliament

Following the endorsement of the Patents Package by Coreper, the JURI-committee discussed the state of play of the unitary patent at an extraordinary meeting that took place in Strasbourg last night. At this meeting, Mr. George Zodiates, Chair of Coreper I, presented the Council compromise proposal for a new Article – Article 5 in the Regulation of Unitary Patent Protection, where the patent holder has the right to prevent third parties from acts against which the patent provides protection. The aforesaid protection is ensured throughout the territories of the Member States. At the same time in order to have homogeneous patent case law, deleted Articles 6-8 have been moved to the Unified Patent Court Agreement (part of the patents package).      

The majority of speakers expressed overwhelming support for the proposal. The three rapporteurs Mr. Bernhard Rapkay (S&D, DE), Mr. Klaus-Henier Lehne (EPP, DE) and Raffaele Baldassarre (EPP, IT) expressed their support for the Council proposal and considered that the Parliament's "red lines" (compatibility of the proposal with Article 118 of the Treaty, respect for the role of the Court of Justice and of the Parliament) had been respected.  European Commissioner for Internal Market and Services, Mr. Michel Barnier, also supported the compromise and appealed for 35 years of negotiation to be brought to a close.

According to the JURI Chair Mr. Lehne, the European Parliament would need to check the final text of the package before it could move to a formal endorsement.  Since the agreement is due to be adopted by the Competitiveness Council on December 10, the EP could vote on the Regulations - subject to any amendments from the political groups at its December plenary session.

So, assuming the final text is OKed once the Juri Committee checks it through, we should proceed to a final vote in the European Parliament in December. It is unlikely that MEPs will vote against recommendaitons made by their Legal Affairs Committee, so we can probably assume that by the end of this year a final deal will be done. Hopefully, by that stage we will see the what the compromise text actually says.


Joff Wild
IAM Magazine
19 November 2012

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