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)

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