30 November 2012

Miraculous Sausages: The Unitary Patent on the Finishing Straight

[The making of EU legislation according to Otto von Bismarck]
A miracle is an event attributed to divine intervention. As this may or may not be true in the real world, on 'Spaceship Brussels' an unexpected progress usually is not the result of God's own hand but, rather profanely, of tactical skills to recognise and political assertiveness to utilise a favourable strategical situation for finding allies, offering horse trades and, finally, achieving a political benefit.

But given the latest front lines in the negotiations for the Unitary Patent and Unified Patent Court, we must confess that finding a compromise between the diametrically opposed positions of the EU Council and the JURI committee with respect to the legal supervision of the CJEU over substantive EU patent law (see earlier posting) would be a miracle indeed.

The dilemma started on the European Council summit on 28/29 June 2012, as UK Prime Minister David Cameron could push through that Articles 6 to 8 of the UPP Regulation be deleted to the effect that substantive patent law would not anymore be subject to CJEU supersision. The European Parliament and its legal committee (JURI) were strongly irritated and willing to refuse any text in which the CJEU has not the final say about the EU patent system (see e.g. here or there).

But nevertheless, such a divine compromise may have been found in COREPER on 19 November 2012 under the Cyprus Council Presidency in the form of a new Article 5a UPP, replacing former Articles 6 to 8 (see press release). The most recent drafts thus are:
  • UPC Agreement, draft dated 14 November 2012 (Document 16222/12), 
  • UPP Regulation, undated draft of 19 November 2012 (leaked Document sent from COREPER to JURI).
On the ksnh::law blog, the miraculous development has been covered by the following postings:

But why is that a compromise? Why is JURI prepared to accept the amended UPP Regulation without Articles 6 to 8?

The reason appears to lie in new Art. 5a (3) UPP, reading
The acts against which the patent provides protection referred to in paragraph 1 [i.e. the substantive effects of a Unitary Patent] and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the participating Member State whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 10 [treating a Unitary Patent as a national patent
which is outlined in the explanation on page 2 of this leaked document:
Pursuant to new Article 5a(3) UPP Regulation, uniformity of protection will be achieved by the reference to the law of the participating Member State whose law is applicable to the European patent with unitary effect as an object of property pursuant to Article 10 UPP Regulation. Implicitly this refers to Articles 14f to 14i of the UPC Agreement, which correspond to the former Articles 6 to 8 of the UPP Regulation and which define the scope of the right of the proprietor, its limitations and prior user rights. Articles 14f to 14i of the UPC Agreement which previously applied only to ”classical” European bundle patents have now been amended so that they now apply also to European patents with unitary effect. These Articles defining the scope of the right, its limitations and prior use rights will form an integral part of the national law of each participating Member State in which the UPC Agreement will come into force and for which the European patent with unitary effect will become operational.
That is, in short, by a legislative trick the new Unified Patent Court is defined to be a "court of a European Union member state" (just like e.g. the Benelux Court of Justice) and thus is, as a "court or tribunal of a Member State" within the meaning of Article 267 TFEU, entitled to refer questions to the CJEU and ask for a preliminary ruling. 

As some may feel reminded of the finding of Otto von Bismarck, who compared laws to sausages, since it is better not to be there when they are made, British Tory eurosceptics might feel severely outsmarted by the EU legislation as the trophies their brave knight David Cameron heroically won on the European Council summit in June 2012 suddenly turn to a Pyrrhic victory.

But the tide may turn again, because for entering into force the UPC Agreement has to be ratified or acceded by thirteen member states including the three (mandatory) Member States in which the highest number of European patents had effect in 2012 (cf. Art. 59 UPC Agreement), which will be Germany, France, and ... the United Kingdom, thus providing UK eurosceptics with a long lever to infuriate the rest of the Union - maybe except Italy and Spain.

(Photo 2010 by timo_w2s via Flickr under a CC license)