The unitary patent and the European Patent Court – negotiations nearly complete?

17 December 2011

Will we get a decision this year? On 5 December, the EU Competitiveness Council discussed the unitary patent and European Patent Court package. Although no final decision was taken, well-informed sources say that agreement is not far off. The Polish EU presidency is doing its best to achieve it by the end of the year, but the last few steps can often be the most difficult ones.

The main sticking point, apparently, is the location of the future court’s central division. But that is in itself an indication that the negotiations are nearing their end. So I feel the glass is at least three-quarters’ full, and remain optimistic about the final outcome. If agreement is not reached under the current Polish presidency, it should certainly be accomplished during the next (Danish) one. At this late stage, after so much time and effort has been invested, stakeholders would find it incomprehensible if the project were to fail – especially at a time when Europe is in economic difficulty and European industry needs a more attractive context for protecting innovation and competing on global markets.

The unitary patent will of course have a direct impact on the EPO, and here the final draft fulfils a number of criteria we regard as important. First, it respects our existing general framework, with governance provisions which envisage a special select committee and financial ones which comply with the principle of budget neutrality. The new system will not affect the pre-grant phase, which will be conducted entirely under the EPC. We shall have some new tasks to perform, such as collecting post-grant fees and managing the translation arrangements, but in-house preparations are well in hand to ensure that we will be ready on time.

The European Patent Court proposal, meanwhile, represents a benchmark of best practice in Europe, drawing on both the earlier European Patent Litigation Agreement project and the acquis communautaire. One particular aspect is that technically specialised judges will sit on the new court. Some reservations have been expressed about quality and efficiency, but that is inevitable with such an ambitious new project, especially one affecting legal and jurisdictional frameworks. We heard similar things when the EPO was being set up, but over thirty years on it has become one of Europe’s great success stories.

Then, as now, we did not have the luxury of being able to wait for a perfect system. I think it is high time to move forward.

Benoît Battistelli

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2 comments on The unitary patent and the European Patent Court – negotiations nearly complete?

  1. On 4 December 2011, FICPI submitted to the European Commission its position paper responding to the EC’s proposal for a Unified Patent Court and Unitary Patent. In the short time available to it, FICPI prepared its response, taking into account existing FICPI positions and resolutions.

    FICPI expressed its concern with the haste and lack of consultation with which the proposals had been made, and urged greater user consultation to identify the legal and practical deficiencies in the proposals.

    In its position paper, FICPI stated:

    "FICPI believes that the present projects have been prepared with excessive haste and suffer from a number of severe legal and practical deficiencies, partly because there has been inadequate consultation with the stakeholders of the patent system, which is essential to robust and effective law making.

    "FICPI therefore considers that it would be a mistake to sign and enforce the planned legislation documents in their current form.

    "FICPI therefore strongly urges the authorities in charge of enforcing this project to pause and organize a proper user-consultation process that would allow the major roadblocks identified by FICPI (and detailed below) and other organizations to be addressed. FICPI would be very willing to participate in such consultation process.

    "In the limited time available, FICPI has intensively studied the numerous consecutive proposals in its Study and Work Commission (CET) and has identified severe legal and practical deficiencies in these proposals, which would be detrimental to the future system, and to the image of the IP system in general, if these concepts were enacted and enforced in their present status.

    "FICPI shares the impression of many other user groups that the present matter is being handled much too quickly, with important issues not thought through and not publicly debated (especially with the stakeholders of the system) as they should be. Problematic and therefore bad law will result. As FICPI will show hereinafter, important provisions in the present proposals, e.g. with respect to the competence of the divisions, fee structure, languages, amendment procedure, and of course, the Rules of Procedure of the Court, are not properly defined or formulated to allow an overall assessment of the project. Renewal fees too have not been properly explored. And there is still strong objection to the definition of the effect of a Unitary Patent".

    The paper, which has been provisionally approved by the Bureau of FICPI and which will be submitted to the ExCo in Melbourne for ratification, contains a detailed discussion of each of the proposals, and is available for review by following this link

  2. Fab says:

    And how long will it take to decide on the location? Will we end-up with a court in 3 locations like we have a parliament in 2 locations?! This would be a complete none-sense. Why not give the court to the French on the condition that they give back the parlament fully to Brussels?

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