28 December 2011

Commissioner Barnier Considers Seat of Central Division and Office Fees Main ObstacIes to Agreement on EU Patent Package

Michel Barnier getting increasingly impatient with EU Patent system
In an article dated December 26, 2011 (see tweet), french daily Le Figaro reports on the increasing impatience of Michel Barnier, EU Commissioner for Internal Market and Services, with the (lack of) progress in the stalled EU Patent project (covering the Unitary Patent and a related Unified Patent Court) and gives some insight into the state of the negotiations.
 
For those of us who prefer English over French, this is what the article essentially says, besides the usual hymns on the promised cost reductions:
"I appeal to Angela Merkel, Nicolas Sarkozy and David Cameron to reach an agreement as to the seat of the [Central Division of the] European Patent Court" he added. In case of dispute proprietors of a European Patent can take legal action before this Court. Three cities are in the running to host it: Munich, London and Paris, whereas Luxembourg may also be interested.

Another issue to be resolved is the amount of the Office fees that applicants will have to pay [for a Unitary patent] and how [50% of] this fees are to be distributed among the Member States [...]. Denmark which assumes the EU Council Presidency as of January 1, 2012 is determined to do everything possible to find an agreement. This issue should be approached in late February at the next Competitiveness Council meeting. [...].

23 December 2011

Initialling Ceremony for Unified Patent Court Omitted, Danish Presidency will take Over

In a posting on ksnh::law titled "EU Patent Package: JURI has Spoken, But What did it Say?" we report on what - presumably - has happened in the JURI meeting on December 20, in which the EU Parliament's Legal Affairs Committee voted on the three separate resolutions/agreements of the so called 'EU Patent Package', i.e.

  • Enhanced cooperation in the area of the creation of unitary patent protection (JURI/7/05848).
  • Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (JURI/7/05847).
  • Jurisdictional system for patent disputes (JURI/7/06168).
As this press release later reported that JURI "backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called 'EU patent package', questions were asked by observers, as to what Regulation and Draft Agreement JURI actually voted on, since the Competitive Council meeting on December 5 failed at least over a dispute between Great Britain and Germany (and maybe also France) as to the question of the seat of the Central Division of the future Unified Patent Court, so that there simply is no ‘EU Patent Package’ that the EU Council agreed on and JURI is satisfied with, due to the issues left unresolved at the December 5th's Competitiveness Council meeting (see earlier ksnh::law posts [1], [2], [3]).

We thus raised the point that the drafts were voted on yesterday are presumably the same that well-mandated JURI rapporteurs (Bernhard Rapkay, Raffaele Baldassarre, Klaus-Heiner Lehne) carried into the back-room negotiations with the Council on December 1 (see press release) in preparation of the December 5 Competitiveness Council metting (see here). 

Further to this, well-connected anti-software-patent campaigner @gibus aiming at putting an "EU flag into EPO" - i.e. to prevent that settled EPO case law on patent-eligibility of software-implemented inventions will be applicable to the future Unitary Patent - explained in a comment on our posting
So, what has been voted by JURI on Tuesday, was only what has been agreed with the Council in trilogue. No other amendment has been accepted (including Wikström/EPLAW/Jacob amendments to delete arts 6-9 from the regulation). Even amendements suggested and voted by ITRE committee for opinion have not been incuded. (for eg. ITRE Am. 11 recalling that the “rights conferred by the European patent with unitary effect shall accord with rights conferred by the Treaties and Union law”, which is something the regulation cannot escape) have been rejected.
But at least one thing is clear, the Warsaw initialling ceremony to finalise the text of the Agreement, as announced by the Polish Presidency for December 22 (see here), was quitely omitted and the incomming Danish Presidency will now take over. 

As noticed in this tweet under @ksnhlaw, a fact sheet summarising the Priorities of the Danish Presidency announces that
[a] second objective of the Danish Presidency [after economics and finance] will be to continue the development of the single market in order to achieve its full growth potential. [...] The Danish Presidency intends to work to move the twelve key initiatives set out in the Single Market Act forward as far as possible. Special emphasis will be on the directives on public procurement, the standardisation package, revision of the accounting standards, the venture capital proposal the common European Patent system and better enforcement of the posting of workers directive. [...]. 

    20 December 2011

    JURI votes for EU Patent Package Today - But What Exacly is at Stake? (UPDATE)

    European Parliament, Strasbourg, France, Home of JURI
    Today's meeting of the European Parliament's Legal Affairs Committee (JURI) will see the votes on the different parts of the so called EU Patent Package. According to the draft agenda the voting time is set to 10.00 to 12.30 and will cover nine votings among which are
    But what is actually at stake, what exactly are JURI members voting for?

    As reported on ksnh::law in yesterday's posting titled "EU Council: Something To Hide? Might Legal Opinion Turn Out To Be A Bombshell?", our request for public access of Document 15856/11 titled "OPINION OF THE LEGAL SERVICE – Draft agreement on the European Union Patent Jurisdiction (doc.13751/11) – compatibility of the draft agreement with the Opinion 1/09" and marked “LIMITE“ has been served by the European Parliament by a heavily redacted version in which the essential portions were deleted since this document contains "legal advice" as protected under Article 4(2) of Regulation (EC) No 1049/2001. It is not far fetched that the blacked out portions relate to the Legal Service's conclusion that compatibility of the Draft Agreement with the Lisbon Treaty and further EU Law might be a problem, just as outlined in likewise confidential but meanwhile published Document 12704/11 conveying a critical Note from the General Secretariat of the EU Council titled "Creating a unified patent litigation system – Note from the Luxembourg delegation".

    Two week earlier ksnh::law reported in an article titled "JURI mandates Rapporteurs to Negotiate Unitary Patent with EU Council Behind Closed Doors", that the three JURI Rapporteurs have been equipped on 22 November 2011 with a mandate (see agenda, nos. 33, 34, 35) to negotiate the EU Patent Package with the European Council in back rooms behind closed doors. (see e.g. press release as well as press reports [1] and [2]) to ensure that broad discussions and public comments would not endanger the ambitious time schedule for reaching an agreement. Clearly, such behind-the-doors negotiations are perfect situations for non-elected players to influence the decision making process in their particular interest.

    Now that the negotiations between the EU Council and JURI ended on December 5 in confusion, speculations and ongoing criticism especially of the Court Agreement, the current condition and prospect of the EU patent project are increasingly obscure, as are the exact legal regulations JURI is voting on today. This especially holds for the Unified Patent Court Agreement, in which not only the seat of the central division appears to be unresolved but also some substantive legal issues (see here and here). 

    As today's agenda states the well-known draft documents (Draft Agreement, Proposed Regulation) and JURI pre-negotiation positions (Rapkay: PE472.059v02-00, PE475.775v01-00; Baldassarre: PE472.334v02-00, PE4725.788v01-00; Lehne: PE475.785v01-00, PE472.331v01-00) as if there never were any discussions between JURI and the Competitive Council on that epic topic, observers and stakeholders are totally lost and will be surprised when they one day realise what exactly obtained a 'yes' or 'no' by JURI on 20 December 2011.

    If the JURI version comes near to what is presented (leaked?) here, industry and patent professionals may have a Déjà Vu experience in view of the amendments the EU Parliament demanded on the so called Software Patent Directive in 2005.

    If such measures are taken by elected members of a democratic parliament, the respective matter must be in great danger or unfortunate for policy makers or both. In any case, this information hiding attitude - please excuse my openness - is a shame for any democratic legislative process, even if it only affects such minor important issues like the European internal market.

    UPDATE (20.12.2011): Now as the voting is over, an official EU Parliament press realease annonces that "EU patent gets Legal Affairs Committee green light". The essential statement is:
    [...] Legal Affairs Committee MEPs backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called "EU patent package" (unitary patent, language regime and unified patent court). If Parliament as a whole and the Council confirm the deal, a new EU patent will be created. [...]
    Spotaneously one would like to ask which version of the EU patent are they exactly talking about?

    The "political deal struck last 1 December" apparently refers to the allegedly done deal the Parliament announced on 1 December. However, that "done deal" only refered to the closed door negotiations between the EU Council under the Polish Presidency and JURI (see [1], [2], [3]), which wasn't that "done" as it turned out after the EU Council meeting of 5 December 2011 (see here and here). Sadly but expectedly, neither the voting nor the press statement helped to lift the fog.







    (photo 2011 by Anka Pandrea via Flickr under a CC license)

    16 December 2011

    Organisations of Patent Professionals Submit Opinions on Unitary Patent and Unified Patent Court

    After last week's EU Competitiveness Council meeting ended with rather positive news, stakeholders and interest groups increasingly launch attacks on the suggested EU Patent Package (see e.g. here and here). In two recent articles titled

    the ksnh::law blog reports on two papers of FICPI [1] and EPLAW [2] commenting on the draft Unitary Patent Regulation and Unified Patent Court Agreement. FICPI and EPLAW are two of the best-known organisations representing the interests of patent professionals and their clients in Europe, the former being more of a patent attorney's organisation while the latter exclusively represents patent lawyers. 

    As both organisations openly criticise the drafts lying on the table right now and agree to better "go slowly"  and to take a few more months to get it, they take rather different positions regarding one essential issue, namely the question of whether or not Articles 6 to 8 (substantive patent law w.r.t. infringement etc.) should remain in the Regulation for a Unified Patent, since leaving the Regulation as it is now would mean that the CJEU will have a say in substantive patent law in future.

    While FICPI thinks the following:

    [1.2.2] Whereas FICPI cannot see a realistic alternative to a certain involvement of the CJEU also in questions related to infringement cases [...] when a pan-EU harmonisation of patent jurisdiction should be achieved within the EU, FICPI realizes that there could be problems in practice if the effects (and limitations) differ between the UPR and the UPC Agreement.[...]

    FICPI therefore strongly recommends that the authorities involved in drafting the final versions of the UPR and the UPC Agreement safeguard the unitary effect of the patents, including any limitations to the patent rights.

    [2.9] Certain stakeholders have objected to the involvement of the CJEU in patent matters. [...] However, FICPI also points to the fact that in the legal system of the EU, there is no supranational authority other than the CJEU that could ensure pan-EU harmonisation (by way of referrals under Art. 267 TFEU) in contentious legal matters. [...] If therefore a pan-EU harmonisation of patent jurisdiction is wished, any practical solution thereto would have to involve the CJEU by way of referrals under Art. 267 TFEU. If the necessary Regulations and Agreements are drafted with the intention of keeping away as many potential questions form the CJEU as possible, the quality of these Regulations and Agreements will suffer [...].

    FICPI therefore thinks that [...] it should be aimed to make the CJEU a competent final authority also in patent matters and IP matters in general and to provide the CJEU with the means to achieve such goal.

    In this regard, FICPI has suggested in the past that the CJEU should include chambers specialised in intellectual property law [...].

    EPLAW strongly argues in the opposite direction:
    First of all, the question of what constitutes infringement is to be made will not be decided by the new Unified Patent Court which be obliged to refer many questions of interpretation to the European Court of Justice. In other words: the new Unified Patent Court cannot decide on its own the subject matter it is created for – a rather alarming result given the uncertainty, delay and cost that this will create for future litigants, since judges of the European Court Justice have no patent experience. [...]

    14 December 2011

    EU Patent Package Still Under Construction While Italy Joins Unified Patent Court

    Antonio Gaudi's "La Sagrade Familia" - Under Construction Since 1882
    After last week's Competitive Council meeting the EU patent deal appeard to be almost done as "only the seat of the Central Division of the Unitary Patent Court needs to be decided" (see tweet of PL Presidency).
     
    But now, one week later, reports on further or additional amendments desired by stakeholders constantly sprout up, as recently reported on ksnh::law in form of comments on the two questions
    Further recent postings relates to 
    Despite the atmoshere of an (almost) done deal, it is more than likely that stakeholdes now will use the time remaining until the "showdown" on  19/20 December - as suggested by JURI member Cecilia Wikström in a tweet - to lobby for amendments that have not been considered at last week's Council meeting. Further to that, the quickly changing political landscape may also have an impact.

    In our posting dated 8 December, we asked whether or not the Patent Package still is “broadly accepted in substance” by the Council members, as put in the nightly press release coverning the results of the Competitive Council meeting on 5 December. At least the opinions of Commissioner Barnier's Director General, Mr Pierre Delsaux ("discord remains on all points concerning the creation of a court"), make doubt about whether the above question can still be answered by "yes". 

    Especially the strong desire of (parts of) industry [1] and patent professionals [1][2][3], politically supported by JURI member Wikström and UK IP Minister Baroness Wilcox, to remove Articles 6 to 8 dealing with substantive patent law on patent infringement from the proposed Regulation appears to be still at stake (see also here or here). The fears of those groups are that otherwise substantive patent law would become part of EU legal order causing costs, delays, legal uncertainty. A related EPLAW resolution expressed such concerns in a rather pointed way:
    If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.

    If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.

    And if somebody intended to lay a solid ground for failure of this - at some time very promising - project, then he will probably succeed.
    Our posting dated 12 December adressed Italy's attitude towards the Unified Patent and the Unitary Patent Court, now that pro-European former EU Commissioner Mario Monti is in power. As also leaked by Mr Pierre Delsaux, Prime Minister Monti is in fact considering joining the unitary system, as also reported on the Government website 'Politiche Europeo' under the headline "Italy’s ‘yes’ to the European [Patent] Court" on 8 December 2011: 
    [...] At the EU Competitiveness Council in the late afternoon of Monday, Enzo Moavero Milanesi, who for the first time participated as [Italian] Minister for European Affairs, has partially corrected the course of [Italy's] previous government concerning the international agreement for establishing the Unified Patent Court. From now on, therefore, Italy will participate in the negotiations regarding the agreement to constitute a [Unified Patent Court].
    It meanwhile has been confirmed that "Italy will participate to the negotiation on Unified Patent Court Agreement [, while] it appears that the Italian Government at the moment does not intend to withdraw the ECJ action" and thus is not yet prepared to accede to the Unitary Patent as well.

    Another open question is the seat of the Central Division of the Unitary Patent Court. The most promising candidates still appear to be Munich, London, and Paris, whereas London may have minimised its chances due to Prime Minister Cameron's recent political moves while Milan is at least put forward by Italian politicians in return for acceding the Unified Patent system.

    In any case, the next official steps will be taken on
    • 19/20 Dec, meeting of the Legal Affairs Committee JURI,
    • 22 Dec, end-of-presidency ceremony in Warsaw (see here).
    • 14 Feb 2012, first plenary session of the EU Parliament (see here),
    • 2014, entering into force of the Patent Package.

    (Photo 2006 by tata_aka_T, via Flickr under a CC license)

    06 December 2011

    A Crazy Day in Brussels Ended with Luxemburg receiving the Court of Appeal of the Unified Patent Court? (Updated)

    Luxembourg, future home of the Court of Appeal of the Unified Patent Court?
    It has been a crazy day in Brussels and in the IP blogoshere yesterday, beginning - despite of harsh criticism - with hopes of the Polish Presidency to obtain an agreement on the EU Patent Package including the seat of the Unified Patent Court, continuing with expectations, speculations [1], [2] and frustrations due to the fact that the only source of information being common-place press conference repeating the same old known mantras (like the enormous cost reduction the Unitary Patent would bring; opposing view here), accompanied by 'water level reports' and even more speculations in the blogoshere ([1], [2], [3]).

    At the end of the day we were left with a press report and a Commissioner's tweet telling us that an agreement was missed by only a small margin and a few more days were needed.   


    Now the ksnh::law blog (and others [1], [2]) told us in a posting titled "EU Patent Package: No (Complete) Solution Yet" how it ended in the night, keeping in mind that the question really electrifying the blogosphere was, of course, the seat of the new Court.  

    A nighly press release after the first day of the final Council meeting under the Polish Presidency (Chair: Waldemar Pawlak, Deputy Prime Minister and Minister of Economy of Poland) explained:
    [...] The debate took place on the basis of a compromise package drawn up by the Presidency. The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011. [...],
    while the Presidency disclosed on twitter that only the seat of the Central Division of the Unitary Patent Court needs to be decided, apparently meaning that the seat of the Court of Appeals has already been determined!

    Further, EUobserver believed to know that a compromise as to the "seat of the main litigation court for the upcoming EU patent" - apparently Paris - was refused by Britain and Germany. Further:
    under the non-contentious parts of the deal, Luxembourg would get the appeals court, Slovenia and Portugal two mediation and arbitration centres and Hungary a training facility,
    ... leaving us behind waiting and wondering whether or not this EU-specific melange of national interests blocking straightforward solutions (Munich, London or Paris) and endless negotiations giving birth to minimalist compromises might by a reason why international investors increasingly distrust the European Union's capability of solving the continent's dept crisis. Let's hope that Merkel and Sarkozy will prove this presumption wrong at this week's EU summit - and later on also Pawlak and Barnier

    UPDATE (07.12.2011): Under the headline "Agreement on substantial issues of single EU patent", the Polish Presidency reports on the issued the EU Council could agreed on 5 December, not forgetting to again stressing that this "may reduce the cost of obtaining the protection of inventions in the EU by as much as 80 percent" (in which statement the "may" is the most interesting part) and coining the sexy term "Warsaw Convention" for the package, maybe to prevent the whole thing being called Warsaw Pakt one day:
    [...] Out of the whole patent package the only remaining issue to be decided is the seat of the central division of the Unitary Patent Court UPC (Court of the First Instance).

    [...] In [Mr Pawlak's] opinion it is possible to adopt “the Warsaw Convention” – initialing of the negotiated text of the agreement creating the UPC by the representatives of EU member states – already on 22 December 2011 in Warsaw.

      [...] We agreed, amongst others, on the locations of  the Court of Appeal  in Luxembourg and the Patent Mediation and Arbitration Center in Lisbon and Ljubljana, as well as the basic principles of the funding of the UPC [...].
    By the way, there already is a 'Warsaw Convention', namely that of 1929 for regulating liability for international carriage of persons, luggage or goods performed by aircraft for reward, as can be learned from Wikipedia. It may thus be more appropriate to refer to this legislation as the "Warsaw Patent Convention".


    (Photo 2005 by Jepoirrier, via Flickr under a CC license)

    04 December 2011

    European Parliament Announcend "Done Deal" on EU Patent Package with some Pride

    Tuesday last week the European Parliament rhetorically asked in a press release (pdf) if the deal on the EU patent was already done. An official press release having this headline is truly sensational, since it implies that there are reasonable chances that Spain and Italy would agree on the EU Patent Package as well.

    However, a closer look into the press statement shows that sadly it is not announcing a sensational transformation of the enhanced-cooperation-driven Unitary Patent approach into an unanimous European Union Patent thanks to a last minute attempt of the EU Parliament, but only refers to the closed door negotiations between the EU Council under the Polish Presidency and JURI, the Parliament's Legal Affairs Committee (see related postings on ksnh::law and this blog):
    Parliament's rapporteurs struck a political agreement with the Polish Presidency of the Council on the three proposals (unitary patent, language regime and unified patent court) that form the "EU patent package". 
    But this might be good news as well, since the JURI Rapporteurs Bernhard Rapkay (S&D, DE, in charge of 'Unitary Patent Protection'), Raffaele Baldassarre (EPP, IT, in charge of the 'Translation Arrangements') and Klaus-Heiner Lehne (EPP, DE, in charge of the 'Jurisdictional system for patent disputes') followed an agenda involving reduction of patenting costs for small firms and avoiding legal confusion created when dealing with differing national patent laws, whereas the latter issue is already solved by the tabled draft texts (Document 11328/11 “Proposal for a Regulation [...] implementing enhanced cooperation in the area of unitary patent protection” dated 23 Jun 2011 and Document 15539/11 “Draft Agreement on a Unified Patent Court and draft Statute” dated 19 Oct 2011).

    However, the press statement does not go beyond the usual success stories and well known phrases like "major step for EU industry's competitiveness" and "strengthening SMEs' interests". It appears as if the European authorities in charge follow a dramaturgical agenda and try to even increase the tension among patent system users and professionals to be able to present a perfectly tailored "Patent Christmas Package" on the Warsaw end-of-presidency ceremony on 22 December.

    The regulation setting up a unitary patent protection system:
    The agreed text largely reflects the Commission proposal, and in particular a provision allowing inventors from countries currently outside the procedure to apply for an EU patent. [...] Specific provisions have been introduced to ensure that small firms benefit from reduced costs and a sound system for distributing patent renewal fees
    Upon interpreting the meaning of this abstract statement a look into the amendments to the Unitary Patent regulation as suggested by the JURI commitee might help (Document PE472.059v02-00 - COM(2011)0215 – C7-0099/2011 – 2011/0093(COD), Amendments 1 – 44 - and Document PE475.775v01-00, Amendments 45 – 94). 

    Language Arrangements:
    The proposed regime for translating EU patents would make them available in German, English and French, although applications could be submitted in any EU language. Translation costs from a language other than the three official ones would be compensated.
    Rapporteur Baldassarre added that "specific measures have been agreed to facilitate SMEs' access to the European patent market [reaching] from a stronger legal protection to full compensation of translation costs" and that "for a transitional period a second full translation into English will be obligatory" - while the SME issue might again refer to translation costs, the remaining points have been already introduced in the Proposal for a Regulation on the Unitary Patent, Document 11328/11. 

    Unified Patent Court:

    Regarding this piece of legislation it is only reported that Rapporteur Lehne "made sure that the litigation system is efficient, by giving it a decentralised structure, clear procedural rules and judges selected for their competence" - whatever that might mean before the backgrond of the present text of the Draft Agreement that realises such issues at least to a certain extent. Some hints on what such cryptic statements could actually mean might be drawn from Mr Lehnes agenda for the negotiations as setup in Document PE475.785v01-00 (Amendments 1 – 25 concerning “Motions for a resolution”, 2011/2176(INI), Jurisdictional system for patent disputes) and Document PE472.331v01-00 (Suggestion for a "Motion for a European Parliament Resolution" with amendments 2011/2176 (INI)).

    Countdown to the Agreement:
    • 5/6 Dec, Meeting of the Competitiveness Council in Brussels (see here and here). 
    • 8/9 Dec, EU Summit of the Heads of Government in Brussels,
    • 19/20 Dec, meeting of the Legal Affairs Committee JURI, 
    • 22 Dec, end-of-presidency ceremony in Warsaw (see here and here).  
    • 14 Feb 2012, first plenary session of the EU Parliament (see here), 
    • 2014, entering into force of the Patent Package.

    (Photo 2005 by Salid Shadid, via Flickr under a CC license)

    02 December 2011

    Seat of the Unified Patent Court to be Determined Comming Monday?

    It appeast the race for the seat of the future Unified Patent Court is going between London and Munich. While the German Government mad its bit for Munich already months ago, the Cameron administration needed to be pushed by professionals lately (e.g. by LES-UK and IP Foundation) to finally make its bit for London.

    As we knew that the seat of the Patent Court is scheduled to be announced on 22 December 2011 in Warsaw at the end-of-Presidency ceremony (see here), we now got aware of the fact that the decision may be drawn (but disclosed?) already at the Competitiveness Council meeting comming Monday, 5 December, as reported by ksnh::law in today's posting titled "Memo for Competitive Council Meeting on 5, 6 Dec 2011 names 'Seat of the future Unified Patent Court' as Controversial Issue", refering to today's press release (MEMO/11/864) announcing that
    "the Polish Presidency will present for agreement a number of outstanding, politically sensitive issues including the seat of the future Unified Patent Court [...]." 
    This, however, does not necessarily mean the Ministers be able to agree on a Court seat (neither that the seat is disclosed when they are able to find one - but nowadays leaking is very popular), such highly political issues are very often left for the Heads of Government, who will meet again on 8/9 December at the Brussels EU Summit.

    The debate is scheduled to start Monday morning at 9:30 with the proposal for the regulation implementing enhanced cooperation in the area of the creation of unitary patent protection and the applicable translation arrangements (see agenda) and to continue the examination of files related to the creation of unitary patent protection and of a unified patent litigation system in the afternoon (see background note).


    The debate and the related press conferences after lunch and a the end of the evening session will be webcasted so that "thousands of patent lawyers, academics, judges and Kats across Europe [will hold] their breath....", as the IPKat put it.

    As I am a little biased and would appreciate to have the new Court within subway distance, I do wish London, the city where I once studied, all the best. By the way, if I understand the reports on the London bit right, it appears to relate to the Central Division of the Court of 1st Instance only. Wouldn't it be salomonic to have the Appeal Court in Munich then?

    29 November 2011

    How Exactly Works the Future Europen Patent System with the Unitary Patent and Unified Patent Court? (UPDATE)

    While stakeholders frequently discuss the political and financial issues in connection with the Unitary Patent and the related Unified Patent Court, the procedural and patent law related features of the new framework are not so often exhibited.

    In a recent article titled "The Essential Features of the Unitary Patent and Unified Patent Court – An Itemized Overview" we provide on our corporate ksnh::law blog a clear survey on what will become reality soon, covering the following aspects:

    I. The historic developement of the discussion
    • The Community Patent
    • The European Patent Convention
    • The London Agreement
    • The Unitary Patent
    II. Unitary Patent Protection
    • Legal Framework
    • Request for Unitary Effect
    • Legal Effect of Unitary Patent
    • Object of Property
    • Annuities
    • Substantive Rights
    • Transitional Rules
    III.   TRANSLATION ARRANGEMENT
    • Translations upon Grant
    • Translations upon Infringement/Invalidity Actions
    • Transitional Rules
    IV.  UNIFIED PATENT COURT
    • General Framework
    • Structure of the Court of First Instance
    • Competences of The Court
    • Stucture of the Divisions of Court of First Instance
    • Structure of the Court of Appeal
    • Language of the Proceedings
    • Miscellaneous
    V.  PROS AND CONS


    UPDATE (04.12.2011): The German version of this overview can be found on ksnh::jur

    28 November 2011

    Agreement on Unitary Patent / Unified Patent Court To Be Reached Until 22 December 2011

    On our corporate IP law blog ksnh::law, we published a series of articles documenting the latest developments of the Unitary Patent and Unified Patent Court in Europe:

    Now, Document 1757539/11 of the Polish EU Presidency comprises under item 11 the following notice:
    The Presidency announced its intention to organise the initialling ceremony whereby the text of the Agreement could be finalised in Warsaw on 22 December 2011. The Presidency considers that the Member States should be able to arrive at a political agreement on the text of the Agreement at the meeting of the Competitiveness Council on 5 December 2011 on the basis of this set of compromise proposals, despite the fact that some issues of political importance could be left to be agreed at a later stage, but before the signature of the Agreement.
    I wonder if the Warsaw ceremony only is intended to celebrate the Agreement or to also reveal that Warsaw has been selected as the location of the Unified Patent Court (i.e. of either the Central Division of the Court of 1st Instance or even the Court of Appeals), as speculated in this earlier posting

    Anyway, the Presidency's notice is in line with a time schedule published on the European Parliament website.

    While the latest versions of the EU Council's Draft Agreements are the “Proposal for a Regulation [...] implementing enhanced cooperation in the area of unitary patent protection” dated 23 June 2011 (Document 11328/11) and the “Draft Agreement on a Unified Patent Court and draft Statute” dated 19 October 2011 (Document 15539/11), the Legal Affairs Committee (JURI) of the European Parliament recently mandates its three Rapporteurs to conduct the required negotiations about the "Patent Package" with the EU Council behind closed doors (see also this posting). The reports that represent agendas the three JURI Rapporteurs will follow in the negotiations are the following (see also this posting):

    Rapporteur Bernhard Rapkay (S&D, Germany) is in charge of 'Unitary Patent Protection':
    • Document PE472.059v02-00: Draft Report on the proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection (COM(2011)0215 – C7-0099/2011 – 2011/0093(COD)) including Amendments 1 – 44 and
    • Document PE475.775v01-00: Amendments 45 – 94.
    Rapporteur Raffaele Baldassarre (EPP, Italy) is in charge of the 'Translation Arrangements':
    • Document PE472.334v02-00: Draft Report on the proposal for a Council regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (COM(2011)0216 – C7-0145/2011 – 2011/0094(CNS)) including Amendments 1-19; and
    • Document PE4725.788v01-00: Amendments 20 – 47.
    Rapporteur Klaus-Heiner Lehne (EPP, Germany) in charge of the 'Jurisdictional system for patent disputes':
    Besides theses JURI issues, Document 1757539/11 summaries the key issues from the Presidency's perspective:
    • the financing of the Unified Patent Court, the financial contributions of the Member States
      and the level and type of court fees;
    • the link between the entry into force of the Agreement on the Unified Patent Court and its
      coming into operation and the application of unitary patent protection;
    • the transitional arrangements and the review clause;
    • the language of proceedings in the Court of First Instance; and
    • a declaration by the contracting Member States affirming their willingness to start the preparation for the entry into force of the Agreement without any delay.
    Further, there is one interesting issue that is as important for efficiency and quality of the new Court as it is controversially discussed between the EU Council, the JURI rapporteus, JURI members, and diverse stakeholders: representation rights.

    While the current text of Article 28 of the Draft Agreement, as suggested by the EU Council, reads
    (1)  Parties shall be represented by lawyers authorized to practise before a court of a Contracting Member State.
    (2)  Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.
    (2a)  Representatives of the parties may be assisted by patent attorneys who shall be allowed to speak at hearings of the Court in accordance with the Rules or Procedure.
    (3) ... (4)  ... (5) ...
    and thus suggests to give equal entitlements to represent parties before the Unified Patent Court for national lawyers and European Patent Attorneys holding a Litigator's Certificat - whatever that might be -, JURI Rapporteur Klaus-Heiner Lehne finds that
    [i]t is of utmost importance that parties are represented [only] by lawyers with the necessary
    experience in both patent and procedural law. Patent attorneys not authorised to practice
    before a court of a Member State can play an important supportive role and should therefore
    be allowed to speak before the Court

    in his Suggestion for a "Motion for a European Parliament Resolution" (see also this posting), whereas speculations exist that this strict view might be influenced by the circumstances that Mr Lehne, firstly, is a partner of Düsseldorf law firm Taylor Wessing (see here), which clearly has the unitary patent and its unified jurisdiction on its radar and, secondly, is considered a member of the patent microcosm of EPLAW, the European Patent Lawyer's Association under its vocal President Jochen Pagenberg of leading European patent law firm Bardehle Pagenberg (see also this posting of @gibus).

    As opposed to her Rapporteur's view, JURI member Cecilia Wikström (ALDE, Sweden), in turn, suggets that
    the parties should be represented only by lawyers authorised to practise before a court of a Contracting Member State and/or by European Patent lawyers who are entitled to appear before the European Patent Office;
    thus wanting to give equal rights to lawyers and European Patent Attorneys even without the additional qualification of the Litigator's Certificate, in line with at least the opinion of the Confederation of Swedish Enterprise, the Swedish section of BusinessEurope, and the Association of IP professionals in Swedish Industry.

    This might illustrate the range of suggestions, opinions, and interests that quicky need to converge to meet the very ambitious time schedule.

    21 October 2011

    Will the Unified EU Patent Court be Situated in Munich, or rather Warsaw?

    Our today's article on the ksnh::law blog speculates a bit about whether or not the Unified Patent Court may go East, e.g. to Warsaw, Poland.

    An example of such a decision on where to locate may be seen in the purely political decision in the 1990s that the new Office for Harmonisation in the Internal Market (OHIM) should reside in Alicante, Spain - instead of the the much better prepared London - since it simply was Spain's turn to receive a major EU institution.

    In a couple of month's time, we will see the decision on where the first instance Central Division and the second instance Appeal Court of the EU Unitary Patent Court System will be located.

    Like London in case of the OHIM, this time Munich would from a pragmatic point of view be an excellent - if not the best - location in the EU, since this city has qualified (legal) judges, experienced technical judges, the German Federal Patent Court (Bundespatentgericht), the Eurpean Patent Office, the independent EPO Boards of Appeal, the renowned Max Planck Institute for Intellectual Property and Competition Law, and last but not least plenty of patent law organisations and firms within its borders that all play their role in an active and professional IP scene.

    However, the same kind of political vote that installed the OHIM in Alicante would now rather select a large and influencial country that does not have EU institution yet, for example – Poland

    But this time it might be different, since Warsaw alredy was discussed as location of the Boards of Appeal of the EPO, once they obtain their organisatorical autonomy. In the end, the Boards of Appeal remained where they were, in Munich, since the Members of the Boards of Appeal refused to move from cosy Munich to unknown Warsaw. What can be learned from this example is that the potential Members of the new Court, i.e. legal and technical judges of well-respected national patent courts will have their say - and many of those potetial Members will definitely come from Munich, especially from the Federal Patent Court (Bundespatentgericht) and the EPO Boards of Appeal, since the new Unified EU Patent Court will be competent for both the European patent according to the EPC and the new EU patent with unitary effect.

    08 October 2011

    EU Document 14191/11: Compatibility Check of Unified Patent Court Draft against EU Regulations

    In  the articles titled "Compatibility Of Draft Agreement On Unified Patent Court with EU acquis" on the ksnh::law IP blog, we report that Axel's individual request regarding public access to EU Council Document 14191/11 titled "Compatibility of the draft agreement on the Unified Patent Court with the Union acquis" (download here) has been accepted by the General Secretariat. 

    The document reveals that the Commission services have checked the compatibility of the draft agreement on the Unified Patent Court (UPC) against an number of EU Regulations, Directives and Conventions and found that essentially only the relationship between the Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and the UPC Draft needs to be clarified in a particular way.

    07 October 2011

    Unitary Patent will not Lower Patent Prosecution Costs by the Promised Amounts

    In a new article titled "Will the Unitary Patent Really Lower Costs for Applicants by up to 70% ?", the IP law blog ksnh::law reports on the fact that this full-bodied announcement of the President of the EPO, Benoît Battistelli, and the European Commissioner for the Internal Market and Services, Michel Barnier, is not realistic and only political PR language. 

    In fact, Mr. Battistelli made clear earlier this year that there will be no change of the EPO's overall fee level only for the EU patent, so that significant cost savings can only be expected in the post-grant phase. Consequently, it is not any more desired that patent APPLICANTS profit from the promised cost savings but rather patent PROPRIETORS who decide to enforce their granted patent – i.e. a vanishing minority of all patentees.

    28 September 2011

    Polish Presidency Submits New Draft agreement on a Unified Patent Court to Friends of Presidency

    In a recent article titled "New Developments Concerning the EU Unified Patent Court", the IP law blog ksnh::law refers to the revised Presidency text of the "Draft agreement on a Unified Patent Court and draft Statute" (Document 13751/11), which was submitted by the Polish EU Presidency to the so called "Friends of the Presidency Group" on September 2, 2011 and then published on September 23, 2011 (see Documents 13751/11 COR 2 and 13751/11 COR 1). 

    The amendments of this document over earlier drafts address the compliance with the EU Treaties as set out in opinion 1/09 of the Court of Justice of the European Union (CJEU), i.e.
    • the limitation of participation (thus excluding the participation of third states as well as the EU) and 
    • the strengthening of the obligation of the Unified Patent Court to comply with EU law and request preliminary rulings, if necessary, including through the introduction of sanctions.
    Besides the analysis given in the above-references ksnh::law posting, the European Patent Lawyers Association (EPLAW) provides a very own assessment, according to which there are concerns that speed is put above careful analysis and reflection and that an easy compromise has become the only goal, since the propsed text alegedly has a number of serious shortcomings having negative economic impact for European applicants:
    • Inexperienced local divisions reduce quality and efficiency;
    • Court fees must be clarified;
    • Appointment of judges with proven experience unclear;
    • No option for parallel national litigation of EP patents;
    • Longer transitional period and more opt-out/opt-in flexibility required; 
    • There should be no EU rules of patent infringement;
    • Rules of procedure should be clear before Agreement is signed;
    • No provisions relating to SPCs and on legal privilege;
    • Termination provisions required;

      27 September 2011

      Protect your Trademark against Registration under the xxx-TLD within the Sunrise Period

      A new article titled "Schützen Sie Ihre Marke vor einer Registrierung unter der .xxx TLD innerhalb der Sunrise Periode" (in German, sorry;  automatic Englisch translation by Google) on the ksnh::jur blog reports on the sunrise period for registering the new xxx top level domain, which started on September 7 and ends on October 28, 2011.

      The xxx TLD is reserved for "online adult entertainment" and "sexually explicit" content. The sunrise period comprises a Sunrise B period,

      “created especially for non-adult Intellectual Property holders who are non-members of the adult Sponsored Community with verifiable trademark rights so they can block their domains in the .XXX sTLD.”
      As owner of a trademark that has no connection to "adult entertainment", you may consider to block your trademark for xxx domains until 28 October 2011 to prevent unpleasant effects on your trademark equity by pornographic content websites and legal consequences evolving therefrom.

      The xxx-TLD is sponsored and administered by the International Foundation for Online Responisbility, in order to, inter alia, 
      • promote the development of responsible business practices and conduct within the online adult-entertainment community that shall be incorporated into the registrant agreement of all .xxx domain names via a Declaration of Best Business Practices;
      • promote the development of business practices to safeguard children online and combat child abuse and child abuse images. 
      Stuart Lawley, CEO of .xxx registrar ICM Registry, thinks that
      "for the first time there will be a clearly defined Web address for adult entertainment, out of the reach of minors and as free as possible from fraud or malicious computer viruses"
      However, there are serious doubts as to whether or not the new TLD can really meet such high expectations, especially since the pornography industry, as the main addressee of this approach, is rather reluctant. They ostencibly expect censorship and limitations of free speech - as frequently emphasised by the "Free Speech Coaliton" fighting "for freedom of speech respecting the inherent right of adults to be adults" - but effectively only fear financial effects on their sordid multi billion dollar business.

      20 September 2011

      OHIM is Transforming to Become a "True IP Agency"

      In a recent article titled "OHIM Soon To Be Transformed Into Sort Of IP Enforcement Agency" our ksnh::law blog reports on the EU Commission's Document COM(2011) 288 final (EU Council Document 10668/11) that suggests to entruste OHIM "with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy", being perfectly in line with OHIM President Antonio Campinos' plans to transform his boring Registration Office into a flashy "IP Agency", involving merging the EU Commission’s "Observatory on Counterfeiting" into OHIM.

      Even though the Draft is silent about the influence of the Observatory on Internet politics, we believe that this institution will play a significant role in defining and promoting IP enforcement policies affecting the Internet.

      19 September 2011

      Patent-Sceptical German Pirate Party Sensationally Enters Berlin Regional Parliament

      In a new article titled "How (Not) To Get Rid Of Software Patents" on the ksnh::law blog, my colleague Axel Horns reports on the success of the German Priate Party on yesterday's general elections for the Berlin regional parliament, where the party could, for the first time in Germany, surpass the 5% quorum.

      Even though the German Chapter is sceptical about current Copyright and Patent law, the "Piratenpartei" appears not to aim abolishment of patents in general but "only" demands to ban patents on software, genes, biological organisms and business methods. However,the pirate's result may be a "strong sign that also in the field of IP protection times may well be changing" - at least on the (very) long range, if a new generation of voters and politicians takes a different view on innovation and its legal regulation.