The EU patent package: a motion, a response and now a rejoinder

How some folk see it ...

Just over five weeks ago, the IPKat posted “The EU patent package: a dangerous precedent? A call for sanity” here. This was a motion supported by more than 50 academics and practitioners which prompted a good deal of reaction, not the least of which was the response by Wouter Pors (Bird & Bird, The Hague) which this weblog reproduced in full here. The drafters of the motion have now prepared a detailed reply to Wouter's comments (it's quite long, eight pages in fact, so we have hosted it in full here).

The fight for integrity
of the EU's new patent regime goes on

The authors of the original motion explain that, while the main argument about the incompatibility of the patent package with EU law (and in particular Article 118 of the Treaty on the Functioning of the European Union, the TFEU) remains at the core of this reply, some risks of the package are further explored (including the consequences of side-lining the CJEU for the substantive patent law issues) and new interesting arguments are made (for example whether the adoption of the Unified Patent Court Agreement (UPCA) as a core block of the package could be consistent with the exclusive external competence of the Union). Therefore it is worth reading this more elaborated text. It is definitely timed as the Court of Justice of the European Union (CJEU) will issue its decision on the second Spanish case on 5 May.

 For those who have limited time, or who have not yet focused on the issue, here are the main points:

• The motion criticises the use that is made of an inter-governmental agreement to determine the scope and limits of the protection accorded to “unitary” European patents whereas it is for the EU’s lawmakers to set down the EU’s legal standards in these areas. If it should be validated, this mechanism will in future de facto allow placement outside the realm of EU law of numerous matters that ought properly to be included within it. The patent package is therefore a bad precedent. 

• An understanding of the mechanism complained of, by which EU law has been sidelined, requires a joint examination of Articles 5, 7 and 18 of  Regulation 1257/2012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection. Through those Articles, the mechanism shows its disguised objective: to make as if extra-Union law were in fact Union law. 

• The mechanism of referring to national law, is in and of itself unsuited to meeting the objective of creating true, uniform protection throughout the Union as required by Article 118 TFEU. 

• The timing of the motion is fully justified by the pending Spanish action before the Court of Justice. 

Loyal, but not so much
of the cooperation?

• The principle of loyal cooperation put forward by the Advocate General Bot in the pending Spanish case does not imply a legal obligation on the Member States to ratify the UPC Agreement. If the Advocate General’s argument is followed, democratic control over the entire terms of the UPC Agreement would be non-existent. Neither at EU level nor at the level of the States would the agreement be subject to any true decision by a democratically elected body. 

• The reply rejects the argument that some agreement on the patent system in Europe had to be reached after a few decades of discussions, and that a poor agreement was better than no agreement at all. 

• The motion does not criticise the decision to apply the reinforced cooperation mechanism. When adopted in the course of the legislative procedure, this mechanism was doubtless the only means of circumventing the stalemate (regrettable though that was) on patent languages. But this procedure should not be used to breach the founding treaties of the EU. 

• Although the EU could still adopt a directive or a regulation on substantive patent law, in practice, the UPC Agreement will hinder the EU from passing future patent legislation. 

• It is also questionable whether, by sidelining the CJEU, compliance with fundamental rights will be adequately ensured in the area of patents. The absence of a true parliamentary decision on the agreement (and the procedural rules) moreover poses difficulties in terms of the right to a fair trial.


• The absence of independent democratic or judicial control over the official committee charged with laying down rules of procedure, appointing judges, amending the UPC Agreement, etc. raises legitimate concerns.