Europe's runaway patent train on track -- for scrutiny, or mutiny?

The AmeriKat despondently looks away 
after her pawing at the scratchpost of unitary 
patent politics uncovered 
some unsettling news

Last week the AmeriKat had a question: Under the new Danish Presidency, would the European Union's proposed unitary patent proposals be (a) rushed through with the same disturbing speed that struck fear into the European patent community last year, or (b) would the Presidency, with the benefit of time and unanimous advice and pleading from experts, allow for the reconsideration and improvement of the problematic texts? Disappointingly it seems, from the latest information received by the AmeriKat, the answer is (a).

A few days ago the Council published this memo from the General Secretariat to the Jurist/Linguists Group which records that the group will hold a meeting on 26 January 2011 in order to finalize the texts of the Regulation for the creation of unitary patent protection. Although the memo seemed purely procedural by nature, upon further reflection its publication raised two questions for the AmeriKat – (1) where is the final text? and (2) if the stage has been reached whereby the group is finalizing translations of the final text, is all hope lost in respect of the amendments that are so desperately required?

A little bit of pawing around revealed the following:

• Where is the latest text of the Proposed Regulation? Besides the privileged few in Brussels, no-one has seen the consolidated version of the Regulation but, as previously reported here, the Proposed Regulation passed by the Legal Affairs Committee in December is identical to the proposed text that was agreed during Trialogue, opening the way for the text to be adopted on the nod at the first reading.  

 • On what and when is the European Parliament voting? It is these draft proposals (above) that will be subject to the plenary vote by the European Parliament during its session on 13-16 February 2011.  However, this is only if the Council agrees on the seat of Central Division of the Unified Patent Court, which has been a sticking point for the UK and Germany.  

• So what is going on with the seat of the Central Division? Today, at the meeting of the Committee of Permanent Representatives in the EU (COREPER), it is expected that UK Prime Minister David Cameron, President Sarkozy and Chancellor Merkel will meet to discuss and agree on the seat of the Central Division. If an agreement is reached, it is anticipated that the other Member States will fall in line with their decision. If there is no opposition from other Member States, COREPER could then inform the European Parliament that there is now an agreement in Council on the proposals on the whole package including the seat. Such notice from the Council would smooth the legislative road to the European Parliament’s vote in February, after which the Council would then adopt the proposals into European law.  

• But what about the opposition to the Proposed Regulation? Despite Cecilia Wikstrom having been a hopeful light for the patent profession, it is understood that she voted against her own proposed amendments in respect of Articles 6 to 8. The net result is that most, if not all, political parties in the European Parliament will support and vote for the proposals during the February vote.  

• Are any EU Ministers listening to the European patent community’s unanimous expert opinions? It seems not. With Ms Wikstrom having seemingly given up the fight there does not appear to be any MEPs who will fight to introduce the vital amendments to the proposals that are required to save the unitary patent system from the very fate it was meant to avoid (high costs, delay, uncertainty, etc). In order for amendments to be debated by the European Parliament, amendments must be tabled by either a political group or at least 40 MEPs (Rule 156.1 of the Parliamentary Rules of Procedure). Although the period to table amendments has not opened (and it depends on exactly what day the February vote is scheduled), it seems unlikely that any MEPs will table the amendments. The AmeriKat understands there may be some possibility of the Green Party tabling amendments, but it is believed that, even if they do, their amendments will not include the deletion of Articles 6 to 8 from the Proposed Regulation.  

Where indeed is Italy?

• Where is Italy in all of this? The AmeriKat has today heard that Italy has sent a letter to the Danish Presidency expressing its desire to join the Unified Patent Court but only insofar as it deals with bundled patents (i.e. the current “old” European patents).  However, she understands that, currently, Italy does not want to join the unitary patent. As anticipated by the Kat, Italy additionally expressed its interest in hosting the seat of the Unified Patent Court in Milan (see this document, a draft reply not yet available on the Council's website to this question from Matteo Salvini).  Given that the argument on location is believed to really have centred on London, Paris and Munich, the AmeriKat very much doubts that Italy will have much hope in securing the seat -- especially since they currently want no part of the unitary patent protection element of the package. The AmeriKat is unsure what the position is vis-à-vis Spain. 

Who from the IP Bar will be
giving evidence to the Committee?

The above makes for a rather depressing read, but never tiring of her cheerleading ways, the AmeriKat thinks there may be some hope in the shape of national governments of the Member States. She reported last Friday that, following an outpouring of response from the patent community regarding the proposals' substantive provisions, the UK’s Parliamentary European Scrutiny Committee has called for patent professionals to give evidence to the Committee. The Committee will hear evidence on 25 January 2011. Evidence will be given by Tim Roberts, President of the Chartered Institute of Patent Attorneys (CIPA), supported by Vicki Salmon (Chair of the Litigation Committee of CIPA), as well as a yet-to-be-determined member of the UK’s Intellectual Property Bar. The AmeriKat understands that Dr Jochen Pagenberg (Bardehle Pagenberg) has been invited to give evidence on behalf of EPLAW.

The floor of the  UK's House of Commons -soon to be
 the scene of the next unitary patent debate?

The Committee has the power to keep European legislation under scrutiny until it is happy with the answers given to them by the UK Minister in charge of the proposals, upon which time it“releases” the documents/legislation. It also has the power to recommend documents for debate in a one of three of the European Committees (see p.12 of the Committee's Guide).  More importantly, when the Committee feels that the documents are particularly important, it also has the power to recommend that documents be debated on the Floor of the House of Commons. Under a scrutiny reserve resolution passed by the House in 1998, Ministers "should not" in the Council of Ministers give agreement on proposals which the Committee has not cleared or which are awaiting debate (p. 26 of the Committee's Guide).  Although the AmeriKat notes the use of the phrase “should not” instead of “cannot”, this mechanism may mean that the UK Government may not be able to agree the latest proposals with other Member States in Brussels until the concerns raised by CIPA, EPLAW, CBI, IPLA and numerous other organizations are addressed. This would, it is hoped, allow the time required to reopen the issue of amendments that are necessary before the proposals are adopted into law.

The AmeriKat hopes, perhaps blindly, that with news of this procedure in the UK and the news of similar concerns in Denmark, that other national governmental committees and politicians will take the opportunity to examine the proposals, speak with their patent professionals and raise these issues with their MEPs. The Kat encourages readers to take up the baton with their national politicians and MEPs before the "last chance saloon" of the February vote.

The  t-shirt the AmeriKat will be
wearing should EU ministers continue to
turn  a blind eye to industry concern 

Lawyers are often depicted in popular culture as greedy liars out to serve not their clients', but their own, best and only interest in making money. The AmeriKat was reminded today that, if this issue demonstrates anything about the legal patent profession, it is that this generalization could not be further from the truth -- the debate that has plagued these issues was raised by the legal profession because the current provisions in the Proposed Regulation will result in delays, uncertainty and thus increased costs for users. The only people who would benefit from such a system would be the lawyers who would have to navigate the tangled system, not the users of the unitary patent system who it is meant to serve.

The AmeriKat therefore urges that EU ministers and national governments listen, for one last time (or for the first time it seems in some cases), to the patent profession - "Because otherwise, when your voters complain about the costs of enforcing patents in Europe and when investment in patent protection and enforcement in the EU dries up, you will only have yourselves to blame", she says.