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.

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