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)