A "done deal on EU patent", but what is going on with the Unified Patent Court?

The AmeriKat trying to get better, but the pesky
Unified Court keeps waking her up...

The AmeriKat is currently off duty, having been struck down by acute tonsillitis. Gargling paracetamol and saltwater while bracing herself for the horror of examining the status of her tonsils in the mirror has zapped the energy out of her. However, the AmeriKat’s sense of duty towards her adopted country has summoned her remaining strength to write, yet again, about the Unified Patent Court (previous posts on its location here and Professor Sir Robin Jacob’s specific criticism here). 


Yesterday, the European Parliament’s Legal Affairs Committee and Council presidency negotiators approved the latest draft agreement (whichever one that is), on which a voted will be taken on 19 and 20 December 2011. Allegedly, the MEPs adapted the regime to address small firms’ needs. The press release, worryingly entitled “Done deal on the EU patent?” stated that

Bernhard Rapkay, D-DE

“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". The agreement will have now to be confirmed by both the Parliament (after a vote in committee) and the Council. The regulation should enter into force in 2014” [a clear date which was apparently “against Council reservations” according to Rapporteur Bernhard Rapkay (D-DE), who is charge of the unitary patent protection element of the agreement:-see draft Committee Report here]. 

Raffaele Baldassarre - EPP - IT

The legislation establishing the unitary patent protection system largely reflects the Commission’s proposal. Small firms are touted to benefit from reduced costs [“How?”, says the AmeriKat] and a “sound system for distributing patent renewal fees [“You don’t know what you are getting into”, says the AmeriKat, as she reminds everyone about problems with distributing patent fees in the U.S. This whole agreement is being rushed in so quickly the AmeriKat is sure that no one has really thought through the bureaucracy and politics involved in distribution of patent renewal fees on a European-wide basis]. The EU patents would be made available in German, English and French ['German' is alphabetically first, in German] but, according to Rapporteur Raffaele Baldassarre (EPP, IT) who is in charge of the translation arrangements, during “a transitional period a second full translation into English will be obligatory” (draft Committee Report here).

According to the press release, “an international agreement” – -which it now is, given that the EU is no longer a signatory, is

“currently being negotiated by Member States participating in the procedure to create a unified patent court so as to reduce costs and uncertainty as to the law due to differing national interpretations.” 

Klaus-Heiner Lehne

According to the press release, the Legal Affairs Committee’s chair and rapporteur for the agreement on the unified patent court (draft Committee Reports here and here), Mr Klaus-Heiner Lehne, “made sure that the litigation system is efficient, by giving it a decentralized structure, clear procedural rules and judges selected for their competence.” Mr. Lehne, who studied law and physics in Düsseldorf and is a partner at Taylor Wessing in Dusseldorf (here), also stated:

"In 2011, when the proposal was first put forward, it was clear it was a key measure to be adopted. Today's agreement represents in this sense a great success, also due to Parliament's very constructive approach. We had to ensure not only the political consistency of the outcome, but also its legal coherence: the negotiations ended in a positive way in all these aspects.” 

Over the past several weeks the AmeriKat has heard that “The court is definitely going to be in X” applied to no less than 14 different locations. But who is even in the running? The only country to have reportedly put in a “bid” to host the court is Germany (see previous post on Germany and the unified patent). The AmeriKat has spoken to numerous people about this over the past month from all over Europe, but no one really knows what is going on with either the draft agreement or the location of the court. What exactly is the procedure for Member States submitting a bid? Besides the minimal statements about the host in the Draft Agreement and Guidance, what criteria does the host have to meet?  Who is judging this and who ultimately gets to decide?  Like everything, is it ultimately just a political compromise? What is the timeline -–not just for the location of the court but for the entire agreement? In short, what is going? 

Pigs may like mud, but Kats don't -
they prefer things to be clear and transparent

Unable to get out of bed, the AmeriKat has devoted some time trying to see if the European Union’s numerous websites can answer these questions. Four hours of searching later, she is none the wiser.  The AmeriKat and IPKat have previously written about the lack of transparency in the EU, and again, she encounters the same regarding the bidding process of the unified patent court. Why is there such a lack of transparency over this point? Can anyone from the Commission point the Kat to the procedure, timeline and/or documents? If so many half-baked measures of critical importance to national and European intellectual property litigation are going to be carelessly rushed through EU hurdles, it is only right that the public and the practitioners whom it affects can easily know exactly what is going on.


The only thing anyone knows and can agree on is that the Member States are running out of time to put in a bid. Given that, according to the Polish Presidency's Guidance, Contracting Member States can be expected to contribute together “€ 4,8m in 2015, €7,3m in 2016, €8,7m in 2017, €12m in 2018 and €15m in 2019” for the operation of the Unified Patent Court, Her Majesty’s Government (and you, UK readers) need to be taking note. Indeed, this is something that the Scrutiny Committee should be reporting on (here).  According to the same Guidance (paragraph 11), the Presidency considers that Member States should be to arrive at a political agreement during the Competitiveness Council meeting on 5 December 2011 "despite the fact that some issues of political importance could be left to be agreed at a later stage, but before the signature of the Agreement" ["Like the location of the court", says the AmeriKat] .  The Presidency plans that the initialling ceremony taking place in Warsaw on 22 December 2011. 


 Time is limited, but the game's not up yet ... 


The AmeriKat will now collapse back in bed. While she is recuperating, she hopes that readers will take up the baton. You may not support London as being a location for the Central Division or Appeal Court -- that's a matter for you to decide, though the AmeriKat believes the case in favour is strong -- but every reader should support the need for greater transparency and debate on the legislation and procedures that may soon change patent litigation forever, but not necessarily for better.