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)