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Last week, the Legal Affairs Committee of the European Parliament seemed to give the green light to a compromise rewriting of the regulation governing the creation of the EU unitary patent. Previously, it had maintained that a deal done by European ministers in June, at the insistence of the UK government, recommending the removal of articles 6 to 8 of the regulation, could not stand. Now, however, the committee has agreed to their removal and their replacement by a new Article 5a. Articles 6-8 of the regulation had dealt with the role of the Court of Justice of the European Union in the new unitary system. Article 5a does not mention the court.
German patent lawyer Ingve Stjerna, who has followed the EU patent debate very closely, has been in touch with me to explain that as far as he can see what the committee agreed to last week runs contrary to everything its members have been saying up to now:
In order to resolve the stalemate following the EU summit in June 2012 and the suggested removal of articles 6 to 8 from the draft "unitary patent" Regulation, which had always been defended by the European Parliament as an essential element of the Regulation, the Cypriot presidency of the Council of Ministers brought forward a compromise proposal. This suggests the removal of articles 6 to 8 from and their replacement with a new article 5a. Unlike articles 6 to 8, this new article does not define any contents of the rights from and the limitations to the "unitary patent", but simply refers to the court agreement and the national law of the member states. It seems doubtful whether such an approach is compatible with the chosen legal basis for the Regulation, which is article 118 (1) of the Treaty on the Functioning of the European Union.
Stjerna has written a paper which details his concerns and seeks to explain where things now stand from his perspective. You can access it here.
If Stjerna is right, either the Legal Affairs Committee of the Parliament seems to have been persuaded that its previous stance was completely wrong (in which case perhaps the endorsement of the new regime by the full European Parliament in December may not be quite as certain as some (including me) had thought); or, as he states in his paper:
The real purpose of the compromise appears to avoid new negotiations, which would as such now be necessary, at any cost and to come to a result on the basis of the agreement reached in December 2011, however this may look. Thereby, the quality of the system appears to no longer play any role. It seems that the agreement mainly serves the purpose to demonstrate the ability, after 30 years of efforts, to create something which can be sold as a European “unitary patent”. Whether its concrete design is suited to improve the global competitiveness of the European industry appears doubtful, but also appears to be of minor importance.
We all know how well things go when EU member states and the Commission decide to fudge issues instead of ensuring they are fully thought-through and dealt with as thoroughly as possible. A patent built on political compromise, ambiguity and the lowest common denominator will undoubtedly prove immensely popular, especially among SMEs, and work smoothly, with absolutely no possibility of unforeseen problems damagingly exploding further down the line. And now, if you will forgive me, I must go and feed my flying pigs!
IP politics, IP litigation, Patents
No doubt, it is a serious issue that the compromise may be questioned from the point of view of Article 118 (1) of the EU treaty as well as the way it came about.
No less serious is the issue of the legal quality of Art 5a and its effects. It is far from clear what it will mean that the Unified Patent Court shall apply national law in deciding on the interpretaion of the rights from and the limitations to the "unitary patent". The provisions on this subject in the court agreement are already inplemented in national laws of Member States but their interpretation by national courts is not uniform and will not become so by including these basic provisions in the court agreement. Actually, the inclusion in Article 5a of rules for establishing which national law to apply in a particular case shows that this is essential for the interpretation of the basic provisions.
Article 5a requires the scope of the patent right and its limitation to be uniform in all participating Member States in which the patent has unitary effect. However, the reference to national laws, the interpretation of which may continue to differ, contradicts that all patentees will enjoy uniform protection for their patens with so called unitary protection. Since Article 5a will be EU law, it will be the task of the Court of Justice to interpret its said requirement but that means that the object of not extending the tasks of the court by including Articles 6-8 will not be achieved.
One who have no flying pigs to feed.Örjan Grundén, Gozzo Advokater on 06 Dec 2012 @ 11:00