Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.For further information, please refer to our today's article titled "BREAKING: Agreement On EU Unitary Patent Reached" on the ksnh::law blog.
Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).
Concerning actions to be brought to the central division, it was agreed that parties will have the choice to bring an infringement action before the central division if the defendant is domiciled outside the European Union. Furthermore if a revocation action is already pending before the central division the patent holder should have the possibility to bring an infringement action to the central division. There will be no possibility for the defendant to request a transfer of an infringement case from a local division to the central division if the defendant is domiciled within the European Union.
We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.
29 June 2012
Today, History is Written in Brussels: European Patent System agreed on after 40 years of Discussion
27 June 2012
[...] Munich seems to be out of the running, Paris appears to be the favourite and London could win a few laurels.As reasons for this ranking the article refers to the fear that a Munich-based court could prefer bification over invalidity counter claims and the fact that Munich already hosts the European Patent Office as the future examination authority of the Unitary Patent. Paris was first suggested by the Polish EU Presidency in December 2011 as a middle road between the liberal German and the strict English approach towards patent infringement and injuctions. Also, two main players in this game, EPO president Benoît Battistelli and EU Competitiveness Commissioner Michel Barnier are French. As Paris appears to be supported by the President of the EU Council Herman Van Romuy, the FT.com assumes that "the smart money appears to be on Paris at the moment".
In our today's posting "On the Eve of the EU Summit" we report on a compromise plan of Herman Van Rompuy - allegedly in agreement with the 'most concerend' EU member states (i.e. the UK, France, Germany) -, as provided via EuropeanVoice:
Earlier this month, Denmark, which holds the rotating presidency of the Council of Ministers, asked Herman Van Rompuy, the president of the European Council, to broker a compromise.However, it appears to be safe to assume that it will neither be "smart money" nor Van Rompuy's plan that will really decide on the seat issue, but rather the individual agendas of the EU Heads of Government regarding the EU depth crisis, when they will gather tomorrow in Brussels for holding the EU Summit.
Van Rompuy and Helle Thorning-Schmidt, the prime minister of Denmark, have now written to EU leaders proposing a solution.
They wrote: “After consultation with the most concerned member states, we have prepared an outline for an agreement on the outstanding issues – the location of the seat of the unitary patent court (UPC).”
They propose locating the seat of the court's central division, along with its president's office and registry, in Paris, with other departments based in London and in Munich.
“Given the highly specialised nature and quality standards, we also propose to create specialised clusters in two sections of the UPC, one in London, the other in Munich, which will continue to deal with administrative matters.”
It appears more likely that the seat will be awarded to exacly that EU member state that is prepared to compromise to enable an EU-wide agreement on appropriate (financial) measures for tackeling the EU crises. In this respect, Munich may still have chances as Angela Merkel is reported to be prepared to rule out eurobonds "as long as I live" since even the Federal States of Germany do not have a communitarization of depts. Exactly this, however, is one cornerstone of the new Grand Plan drawn up by a European presidential Quadrumvirate consisting of EU Council President Herman Van Rompuy, EU Commission President Jose Manuel Barroso, Eurogroup President Jean-Claude Juncker and European Central Bank President Mario Draghi.
In any case, things remain exciting and EU Summits always are big bazaars where you never know what you will come out with.
(Photo 2010 by Kamshots via Flickr under a CC license)
26 June 2012
On our coporate ksnh::law blog, we recently reported on the much anticipated 'IP TRANSLATOR' decision (C 107/10) of the Court of Justice of the European Community as released on 19 June 2012.
As I give a brief summary on the base below, please refer to the posting titled "CJEU ‘Class Headings’ Case C-307/10 ‘IP TRANSLATOR’ – Final Judgement Is Out" for a more complete coverage of the decision.
The trademark application was launched as a test case by the Institute of British Patent Attorneys (CIPA) to have OHIM's practise as to the meaning of class headings reviewed by the CJEU. The national UK trademark 'IP TRANSLATOR' was claimed for ‘Education; providing of training; entertainment; sporting and cultural activities’, i.e. the class heading of Class 41 of the Nice Classification. The UK IPO refused the application on the basis of Article 3(1)(b) and (c) of Directive 2008/95 and OHIM Communication No 4/03, according to which the trademark covers all services falling within Class 41, so that the trademark was considered lacking distinctive character and being descriptive in nature for "translation services", which also undefalls Class 41. The susequent appeal to the referring court raised that the application did not specify, and therefore did not cover, translation services.
The issued decision is quite clear on this problem. Therein, it has been clarified
- that the goods and services must be identified with sufficient clarity and precision to enable third parties, on that basis alone, to determine the extent of protection;
- that the genereal indications of the class headings may be used provided they are sufficiently clear and precise; and
- that, if (all general indications of) a class heading is used, this will not be considered to cover the entire class if this is not considered sufficiently clear (no. 62). In this case, the applicant would have to specifiy the goods and services further.
From this decision the following three issues arise:
- Pending applications reciting class headings which are not clear and precise. Here the court stated that the applicant must be given the chance to specify the goods and services further, which means to extend the scope beyond the plain meaning of the general indications of the class heading.
- Registrations reciting class headings which are not clear and precise. Here the court did not give any indication how this problem can be resolved. Personally, I would assume that means-what-it-says would prevail in the case of a conflict or cancellation actions. But this remains the most relevant issue. How to deal with the past. This is a point currently dealt with in the Class Headings Project of the Convergence Programme.
- General indications which are not clear and precise. This refers to what the Advocate General raised in his Opinion of 29 November 2011. Some of the general indications (e.g in classes 37 and 45) would be much too general and cover goods and services which are much too varied to be compatible with the function of a trade mark, which is to serve as an indication of origin (see no. 84 of the Opinion). Thus, in the Taxonomy currently being set up in the Convergence Programme, it must be taken care that all groups of terms defining a class scope are sufficiently clear and precise to fullfill this function. Note, however, that all these terms currently proposed have been confiremd to be accepted by all national offices as well as OHIM and WIPO for classification pruposes.
I hereby confirm that I am applying for all of the goods or services included in the alphabetical list of each class field.
Directive 2008/95 [...] requires [that] the goods and services for which the protection of the trade mark is sought to be identified by the applicant with sufficient clarity and precision to enable the competent authorities and economic operators, on that basis alone, to determine the extent of the protection conferred by the trade mark.
18 June 2012
|British IP lawyers lobbying to bring the Japanese IP High Court home to London.|
London offers nothing that the other candidate cities do not offer, while its drawbacks are far greater than those presented by Munich, Paris or the Hague. The UK government should not have entered the race in the first place; it should withdraw now. But if it does not, other member states should not consider the UK capital. There are far better alternatives elsewhere.Besides a number of rather structural factors (comparably few potential UK court users, too expensive, peripheral location, etc.), the probably most persuasive argument is that
UK government and representative IP organisations have shown little inclination to do any of the heavy lifting. [...]. The British government and representative organisations only seem to have got involved now that money is at stake.This is exactly the feeling that at least German IP professional have about the London bit, as the British capital became a candidate city rather late and only after UK legal professionals explained the economical implications involved to their Prime Minister. It did not come as a surprise that the British law gazette reminded David Cameron that "the UK legal sector could lose almost £3bn a year if the proposed new European central patents court is not based in London" only shortly before the Competitiveness Council meeting on 30/31 May 2012 (see here)
Anyway, such remarks will not anymore be heard by the European Council (EU Heads of Government) who will attend to this matter on 28/29 June 2012 (see here) - provided the Greek elections, the Spanish banking crisis and the concerns about Italy leave some room for discussing other matters - as diplomats expect that "[a] decision on the location of the court will be part of a high-level political deal that will have little to do with patents" (see here).
In this connection we pointed on our ksnh::law blog ("Final Showdown Is Nigh") to Document 10059/12 dated May 24, 2012, addressing COREPER 1 and suggesting a way forward for a political agreement of the creation of a Unified Patent Court, as well as to an AFP is report indicating that at tomorrow's COREPER meeting (19 June 2012), EU president Herman Van Rompuy might table a final proposal in preparation for the European Summit to be held at the end of this month. This proposal might indicate the President's favourite UPC seat and the political and/or financial compensations he expects of the respective member state in return.
It is so impressive that the EU administration did not yet loose its idealism and fine sense of humour despite of all those disasters that recently broke in over Europe. This attitude will surely help to restart Unified Europe just like the mythological greek bird of Phoenix (not to be confused with Ikarus).
(Photo 2011 by Richard of England via Flickr under a CC license)
08 June 2012
Controvercy on Unified Patent Court is developing into a Beacon for Europe's policy-making capability
- Intransparent Wheeling And Dealing re Unified Patent Court: Shouldn’t We Be Tired Of Being Put Off?
- Will EU Unified Patent Court Decision Depend On Emergency Of EU Euro Crisis?
- Striking Deficiencies of the EU Legislative Process for Implementing a Unified Patent Infrastructure
- Is the Implementation of an accepted EU Patent Systemthe Litmus test for Europe’s capacity for efficient policy-making?
The Council held a preparatory debate in order to gather consensus on the location of the seat for establishing a unified patent court, with a view to a successful decision on the seat by the European Council at its meeting on 28-29 June 2012.It is apparent that the political actors in the EU Council and the Polish and Danish Council Presidencies have meanwhile completely stopped to listen to expert advice and now try force a breakthrough by some purely political decision on the seat of the central division of the Unified Patent Court, as for a couple of months now the official line of argumentation is that all problems but the seat of the central division are solved (see e.g. Commission President José Manuel Barroso's press release).
Now, as the matter has finally reached the top flight of EU decision-making (see here), Angela Merkel and all of her colleagues on EU level are now poised to undertake a final approach to find a political solution at the the European Council on June 28 and 29, 2012, where, however, the Patent issue will only be a side aspect as fire-fighting the financial crisis will bind most resources.
Up to now, the political game of power went so that Paris, presented as a compromise candidate for the opposing London and Munich bits, was initially rejected but recently declared favorite, while the Italian change of attitude to support the Unified Patent Court (but not the Unitary Patent!) if the Central Division is awarded to Milan will not make things easier (see here). It now is a mere fight for prestige and money (“Billions at stake”) but not so much on European interests and perspectives (see here and here).
Of course, national interest always played a prominent role in the turbulent history of the European Union (official version here) and the present issue is another striking proof for the deficiencies of the EU policy-making process, since complicated substantive arguments as to the merits have been dismissed at a certain point and a purely political question became decisive for the whole project.
- Ignorance as to users and experts and their mostly well-founded observations;
- A striking lack of transparency preventing public involvement;
- An information policy that disguises more than it discloses; and
- National egoisms, inappropriate horse-trading and power games.
- Abandonment of the original goals (patent litigation system working in practice and attractive to its users) occurred behind closed doors in an unprecedented process of legislation, as the papers of the “patent package” had never seen the light of a public discussion;
- Matter has been handled by the instances in Brussels over the last six months in such an undemocratic behavior that few people in Europe would have imagined;
- Council hides legislative texts from public discussion because they fear that otherwise users and members of national parliaments would learn about negative impacts of the project and therefore would oppose and refuse ratification;
- Many additional flaws have found their way into the texts as a result of political compromises which again have never been discussed with users.
But there is still hope as driven by the financial crisis, some politicians in charge realize that the solution might be to dare more European integration, not less, as German Chancellor Angela Merkel sketched at this year’s World Economic Forum 2012 in Davos:
Europe must be a political union, where the European Commission looks more like a government, the European Parliament is stronger and the Council is a kind of its second chamber, and the EU Court of Justice is the supreme court with powers to supervise the implementation of public budgets in individual countries.Singing the same tune, the President of the European Economic Social Committee (EESC), Mr. Staffan Nilson, added that
- we need deeper European integration, in which responsibilities are shared, risks mutualised and resources jointly leveraged to create debt instruments and a growth model which is credible, coherent and sustainable.
- we need a Europe of true solidarity and respect for all citizens.
- we need a Europe of democracy, both representative and participatory.
(Photo 2010 by Katuslampan via Flickr under a CC license)