Black Friday or Black Monday?: Two days of decisions on the unitary patent
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| The AmeriKat enjoying the 40th strawberry of the day. . . |
Earlier that day, the AmeriKat was awoken early by e-mails from IPKat friends, Vicki Salmon and Tom Mitcheson, informing her of the news that UK's Prime Minister David Cameron had blocked the then yet unconfirmed deal (see post here) on the proposed unitary patent and unified patent court after failing to obtain last-minute demands. Mr. Cameron had proposed withdrawing his bid for the Central Division of the Unified Patent Court to be in London in exchange for the removal of the problematic and controversial Articles 6 to 8 of the Proposed Regulation which give the last say on the interpretation of patent infringement and defences to the Court of Justice of the European Union (CJEU) - a problem understood by anyone who has experience with the CJEU's reference mechanism in trade mark law.
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| Prime Minister Cameron |
"Let's see what today brings and if the 4 July vote falls away".Sure enough, after lunch on Friday we received more news from the European Council during the final day of their two day summit. In their conclusions, the Council confirmed the week's earlier rumors that Paris would host the Central Division of the Unified Patent Court, with a London branch of the Court dealing with pharmaceuticals and a Munich branch dealing with mechanical engineering (not automotive which was the earlier rumor). In the document, the Council also suggested 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."Arbitrarily, the Council also stated that there is no possibility for a defendant to request a transfer of an infringement case from a local division to the Central Division if the defendant is domiciled within the EU ("Get ready for jurisdictional races to court", surmizes the AmeriKat). The rationale for this decision has completely eluded the AmeriKat.
So again, more shouts of glee from the patent profession filtering into the AmeriKat's inbox, who nevertheless depressed that the numerous other identified deficiencies had not been addressed, were consoled that at least there was a recognition that Articles 6 to 8 should be deleted - the most problematic of the many offenders in the Proposed Regulation and the Draft Agreement.
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Indeed, the European Patent Office published this press release quoting EPO President Battistelli as saying:
"Thanks to this long-awaited step towards the completion of the European patent system, Europe has demonstrated its conviction that boosting innovation and strengthening the competitiveness of its industry is the best way of countering the current economic uncertainties. The simplification of the existing patent system will bring particular benefits to small and medium-sized enterprises and to innovators in universities and research centres. I would like to take this opportunity to warmly thank all the European deciders who permitted to reach such an historic decision."
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| Bernard Rapkay |
The AmeriKat herself was somewhat livened that it appeared at least someone was listening to the profession and industry on the issue of Articles 6 to 8 but, again, she suspected the fat lady had not yet sung on Articles 6 to 8.
Sure enough this afternoon came news that confirmed what the AmeriKat had predicted to her friends on Friday morning - the European Parliament voted to postpone the 4 July vote on the unitary patent proposals and objected to the deletion of Articles 6 to 8 (see further articles in the German press here and here). The vote for postponement, requested by the German rapporteurs for the proposals - Bernard Rapkay and Kalus-Heiner Lehne - signals the latest of pronouncements from Mr. Rapkay. Mr Rapkay, who previously referred to European judges as an "interest group" in reference to their objection to the inclusion of Articles 6 to 8, stated that the Council had pledged to approve the proposals as they stood as at December 2011 (which the AmeriKat assumes includes the secretive location of the Central Division being Paris) and to change the proposals would be
Sure enough this afternoon came news that confirmed what the AmeriKat had predicted to her friends on Friday morning - the European Parliament voted to postpone the 4 July vote on the unitary patent proposals and objected to the deletion of Articles 6 to 8 (see further articles in the German press here and here). The vote for postponement, requested by the German rapporteurs for the proposals - Bernard Rapkay and Kalus-Heiner Lehne - signals the latest of pronouncements from Mr. Rapkay. Mr Rapkay, who previously referred to European judges as an "interest group" in reference to their objection to the inclusion of Articles 6 to 8, stated that the Council had pledged to approve the proposals as they stood as at December 2011 (which the AmeriKat assumes includes the secretive location of the Central Division being Paris) and to change the proposals would be
"a scandalous breach of procedure"He also likened the Council's negotiation on the seat of the Central Division to that of an "oriental bazaar" and Mr. Lehne stated that deleting Articles 6 to 8 would "emasculate" the proposals. Mr. Rapkay also threatened that if the Council deleted Articles 6 to 8, the case
"would go straight to the European Court of Justice". ["Well, you are in for quite a wait Mr. Rapkay", says Merpel, "What has happened to the Italian and Spanish referrals on the enhanced cooperation procedure?"]The European Parliament's stance is unsurprising. Essentially, the European Parliament's inclusion of Articles 6 to 8 was overturned on appeal by the Council, and then remitted back to the European Parliament to re-decide the same issue. It wouldn't have taken an oracle to predict that the European Parliament would be unhappy with this and object to the deletion. Especially, says the AmeriKat, when you use such weak language as "we suggest that Articles 6 to 8" be deleted.
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| The unitary patent proposals are starting to feel like a never-ending game of chutes and ladders |
"I would suggest to those opposing Arts 6-8 that it is not enough to win the political argument with the UK government and therefore the EU summit. They also have to engage in the legal argument that the regulation would still be a valid use of the power conferred by Article 118 TFEU even without Arts. 6-8. Someone should write (very soon) a formal legal analysis advocating this view, publish it online and circulate it to the relevant people in the Council, Commission and EP."
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| The AmeriKat's green chile rellenos should be covered in green, not red chile |
The AmeriKat agrees and believes this is important, especially in light of the Commons Business Skills and Innovation Committee announcement on this issue stating that the Government must clearly state its position "on avoiding European Court of Justice jurisdiction" (see Kat post here). So to help the Government along, who is going to volunteer to write this letter and analysis?
The AmeriKat knows from speaking and working with the main IP organizations that their views on this issue are united, so she suggests that they combine to write one letter and analysis to avoid the inevitable 8 letters and press releases on the same theme. Much of it has already been written, by this Kat, Kat readers, and the submissions to the House of Commons European Scrutiny Committee. Perhaps, if you give the AmeriKat some lemonade and green chile rellenos she may just do it for you…
In the meantime, the AmeriKat will be back to update readers if any further announcements are forthcoming from Brussels and governments across Europe.
