Thanks to the European Patent Office's presence on Twitter the IPKat can inform his readers of the latest version of things-to-come regarding the Community patent. According to the EPO webpage headed "EU Council agrees on next steps regarding the Community patent (EU patent)" the Kat-- who has not visited this topic since 5 December -- learns as follows:

"At the last [probably not the last, but certainly the latest] Competitiveness Council on 4 December 2009, Ministers reached agreement on a number of key elements constituting the future EU patent system.

Ministers agreed on:

* a draft Regulation on the EU patent - General approach;
* a set of conclusions on the features of the envisaged unified patent litigation system
* the arrangements related to the renewal fees and their distribution for the EU patent
* a system of Enhanced Partnership between the EPO and central industrial property offices.

The substance of the agreed package as set out above comprises neither the translation arrangements for the EU patent [that information could be inferred from the use above of the word 'agreement' ...] nor the details of the EPC revision necessary to accommodate the EU patent [The IPKat feels tempted, when the time comes, to run a competition to see who can offer the most succinct and elegant revision; he's sure his readers could do a great job of it].

With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the "EU patent" and the "European and Community Patents Court (ECPC)" has been renamed the "European and European Union Patents Court (EEUPC)" [Ugh. The IPKat hopes the EU never renames him].

The European Patent Office supports the creation of an EU patent and the establishment of a ... EEUPC, and sees the decisions taken at the recent Competitiveness Council as a promising step forward, although it remains difficult to assess when this will translate into an operational system [Another translation problem, but less politically loaded than the usual one].

Draft Regulation on the EU patent - General approach

The draft Regulation on the EU patent mainly deals with post grant issues, eg. the effects of the EU patent, compulsory licences, or the lapse and invalidity of the EU patent. The translation arrangements are no longer part of it. As a next step, the European Parliament will now have the opportunity to debate the EU Patent Regulation via the co-decision procedure (now referred to as "ordinary legislative procedure" under the Lisbon Treaty).

The basic concept underlying the future EU patent system is that the EU accedes to the European Patent Convention (EPC) and that the EPO grants EU patents. Such patents will be European patents having unitary effect in the territory of the European Union [That's the easy bit].

Revision of the EPC

On the basis of this concept, a revision of the EPC is necessary to put up the EU patent and to allow the EU to accede to the EPC. Issues such as the voting rights of the EU, the establishment of a Select Committee of the Administrative Council or the parallel designation of both the EU and its Member States in a European patent application will also have to be regulated in the EPC. The outcome of a EU patent related revision conference (Revision Act) will then have to be ratified by all EPC Contracting States (36 at present). ... the EPC 2000, which was revised in November 2000 at a Diplomatic Conference comprising only a fraction of the present EPC Contracting States, only entered into force on 13 December 2007, which gives an idea of the time-frame for the realisation of the present endeavour should it finally come to pass [Not sure: the delay here struck the Kat as being the consequence of low-priority apathy rather than high-priority vigour. Different considerations surely apply now.].

Translation arrangements

The Lisbon Treaty (Article 118 TFEU) has provided a new, specific legal basis for the creation of unitary intellectual property titles within the European Union. ... unanimity is still required for deciding on the language arrangements of such titles (and consultation of the European Parliament), all the other aspects thereof shall now be decided upon by qualified majority under the ordinary legislative procedure (co-decision procedure).

... the EU Council conclusions now propose that the translation arrangements for the future EU patent be dealt with in a separate Regulation. This obviously aims at focusing the future discussions on the language regime. As a next step, the European Commission will have to elaborate a proposal for a Regulation on the translation arrangements. It is unclear whether under Spanish EU Presidency a proposal will be presented [The Spanish have been characterised both as a block on progress and as valiant fighters for the protection of the interests of a large Spanish-speaking non-EU interest]. The future translation arrangements would have to be adopted by the Council acting unanimously [Good news for the Maltese?].

According to the EU Council conclusions, it is foreseen that that the EU Patent Regulation comes into force together with the separate regulation on the translation arrangements for the EU [... or not at all?].

The Council Conclusions in detail

Renewal fees

.. Select Committee of the Administrative Council should, once the Regulation on the EU patent enters into force, fix both the exact level of the renewal fees and the distribution key for their allocation. It is foreseen that the EPO retains 50% of the renewal fee income.

Enhanced Partnership

... the Enhanced Partnership ... should enable the Office to make regular use, where appropriate, of the result of any patent search carried out by a central industrial property office of the EPC contracting states on a national patent application, the priority of which is claimed in a subsequent filing of a European patent application. Such utilisation should be carried out in accordance with the already established utilisation scheme of the European Patent Network (EPN) among the EPC states. The Enhanced Partnership should be based on a European Standard for Searches (ESS), containing criteria for ensuring quality which are based on the agreed quality systems of the EPN. In addition to searches, the ESS should include standards on inter alia training, tools, feedback and assessment.

Main features of the ... EEUPC

The EEUPC would be established by a "mixed agreement"" (i.e. the competence to negotiate and conclude the envisaged agreement would be shared by the EU and its Member States) between, on the one side, the EU and its Member States and, on the other side, non-Member States which are Contracting States of the EPC.

The envisaged international treaty would establish a patent court system which has exclusive jurisdiction in respect of infringement and validity issues concerning European and EU patents. The EEUPC would comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance would comprise a central division, as well as local and regional divisions in the contracting states to the agreement.

There are many outstanding issues regarding the unified patent litigation system which remain in dispute, such as the composition of the panels, the competence of the divisions of the Court of First Instance, the notion of technical judges, or the language arrangements.

In June 2009, the Council submitted a Request to the European Court of Justice (ECJ) on the compatibility of the draft Agreement with the EU Treaties. The judicial review of the ECJ takes place before the conclusion of the agreement and is given in the form of an opinion. The opinion is expected at the earliest by summer 2010 [This is useful information. The Kats have taken turns to look for it almost daily since they learned of the Request] ..."

TFEU here
TOFU here

Does nothing miss the eagle eye of the IPKat's friend and guru Axel H. Horns, the German patent attorney and blogger whose IP::JUR weblog has provided a valuable and welcome education for so many of us? Today Axel has posted a piece here entitled "Yet Another Revised Proposal For A Council Regulation On The Community Patent". This post reveals the existence of Document 13706/09, bearing yesterday's date, which the General Secretariat of the EU Council has prepared for the benefit of the Working Party on Intellectual Property (Patents) when it holds its next session next week. This document is 28 pages in length.

Recital 6 of the proposed Regulation will generate some debate:

"(6) Negative effects of an exclusive right created by a Community patent should be mitigable through a system of compulsory licences. This is without prejudice to the application of Community competition law by the Commission or national authorities. The [European and Community Patents Court] Court (hereafter: Court) should be entrusted with the grant of compulsory licences in situations not falling under Community competition law".

The extent to which this fits in with existing Paris Convention and TRIPs provisions relating to compulsory licensing will no doubt launch a few PhD theses, not to mention a smattering of heart attacks.

Articles 21 and 22 are worth reproducing in full:

"Article 21: Grant of compulsory licences

1. The Court may grant a compulsory licence for lack or insufficiency of exploitation of a Community patent to any person filing an application four years or later after the patent application was filed and three years or later after the patent was granted if the patent proprietor has not exploited the patent in the Community on reasonable terms or has not made effective and serious preparations to do so, unless he/she provides legitimate reasons to justify his/her inaction, and on the condition that the grant of the compulsory licence is required in the public interest. In determining the lack or insufficiency of exploitation of the patent, no distinction shall be made between products originating within the Community and products imported to the Community from a member of the World Trade Organization.

2. On request, the Court may grant a compulsory licence in respect of a Community patent (first patent) to the proprietor of a national or Community patent (second patent) or […] plant variety right who cannot exploit his/her second patent or […] plant variety right without infringing […] the first patent, valid for the territory of the second patent or plant variety right, provided that the invention or new plant variety claimed in the second patent or plant variety right involves an important technical advance of considerable economic significance in relation to the invention claimed in the first patent. […] The owner of the first patent shall be entitled to a cross-licence on reasonable terms to exploit the second patented invention or protected plant variety.

Where on the corresponding conditions as above in this paragraph a proprietor of a
Community patent is granted a compulsory licence in respect of a first national patent or national or Community plant variety right, the owner of the first patent or plant variety right shall be entitled to a cross-licence on reasonable terms to use the patented invention of the dependent Community patent for the territory of the first patent or plant variety right.

3. The Court may grant a compulsory license under the conditions set out in the Regulation (EC) No 816/2006 of the European parliament and of the Council of 17 May 2006 on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems.

4. In times of national emergency or in other situations of extreme urgency, including those relating to a public interest of extreme importance, the Court may authorise at the request of a Member State the exploitation of a Community patent.

5 In the case of semi-conductor technology, exploitation shall be possible without the authorisation of the right holder only in the situations set out in paragraph 4.

6 A licence or exploitation set out in paragraphs 1 and 2 may be granted only if the proposed user has made efforts to obtain authorization from the patent holder on reasonable commercial terms and conditions, and if such efforts have not been successful within a reasonable period of time. However, the authority granting the licence may derogate from this condition in the situations set out in paragraph 4. In these situations, the right holder shall be informed as soon as reasonably possible.

7 The detailed rules of application and the procedures to be used for applying the principles set out in this Article shall be laid down in the Agreement on, and the Statute and the Rules of Procedure of the Court.

Article 22: Conditions applicable to compulsory licences

When granting the compulsory licence under Article 21, the Court shall specify the type of use covered and the conditions to be met. The following conditions shall apply:
(a) the scope and duration of the exploitation shall be limited to the purpose for which it was authorized;
(b) the exploitation shall be non-exclusive;
(c) the exploitation shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;
(d) the exploitation shall be authorized predominantly for the supply of the internal market of the Community;
(e) the Court may, on reasoned request of the patent holder, the holder of a contractual license or the holder of the compulsory license, change the conditions set by the authorisation or decide to cancel the authorization, subject to adequate protection of the legitimate interests of the persons so authorized, if and when the circumstances which led to it either change or cease to exist and are unlikely to recur;
(f) the licence holder shall pay the right holder adequate remuneration in the circumstances of each individual case, taking into account the economic value of the authorization;
(g) in the case of a compulsory licence in respect of a dependent patent or a plant variety right, the exploitation authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent or plant variety right".

The IPKat looks forward to the chance to read this document carefully and draw some conclusions. He suspects, however, that some of his patent-proficient readers will beat him to the draw. Merpel says, I do hope they make up their mind how to spell licence/license. Tufty's theory is that the variations of spelling are an indication that the drafting has been in the hands of more than one draftsman.