EPLAW Patent Blog

EU - Unitary Patent / Actions Spain and Italy against enhanced cooperation dismissed

Spain and Italy v Council, CJEU 16 April 2013, Case Numbers C-274/11 and C-295/11

In their actions seeking annulment of the Council’s decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection, Italy and Spain mainly submitted that Article 118 TFEU was not a proper legal basis for the Council’s decision. Following the Attorney General’s proposal (see post dated 11 December 2012), the CJEU dismisses the actions.

In particular, the CJEU concludes that the Council’s decision was taken within the competence provided by Article 118 TFEU and that it was taken as a last resort considering the fruitless stages before the contested decision. The Court rejects the plaintiffs’ argument that creating uniform protection in one part only of the Union would undermine the internal market and states that it is inherent in the concept of enhanced cooperation that acts adopted in its framework bind only participating Member States. Rather, the Court follows the Council’s position that the fragmentation of the market is to be found, not in the contested decision, but in the present situation, in which the protection offered by European patents is national.

The decision does not finally bring legal certainty for the unitary patent since Spain filed actions against the results of the enhanced cooperation, i.e. the Regulations (EU) No 1527/2012 and No 1260/2012 on the creation of unitary patent protection and on the translation arrangements (Cases C-146/13 and C-147/13). The statements of grounds of these actions are not yet available.

Read the press release of the ECJ No 47/13 (in English) here. 

Read the judgment (in English) here.

Reported by Dr. Rudolf Teschemacher

EU - Agreement on a Unified Patent Court signed

EU - Agreement on a Unified Patent Court signed

The Agreement on a Unified Patent Court was signed on February 19, 2013 at a signing ceremony in Brussels by 24 EU member states. Bulgaria is said to sign in the coming days once internal procedures have been completed. Poland and Spain did not sign the agreement.

The signature of the Agreement triggers the ratification process by national parliaments. The Agreement requires 13 ratifications for entering into force, including the ratification by France, Germany and the United Kingdom.

For the documents making up the “patent package”, see the post dated 23/01/2013 here.

Read the press release of the Council Press: 61 Nr: 6590/13 here.

Reported by Dr. Rudolf Teschemacher

EU - Unitary Patent / Final texts of the “patent package”

EU Patent / Unitary patent protection – final texts of the “patent package”

After political agreement had been reached on the patent package on December 11, 2012, the text of the three legal instruments were finalised. Regulation 1527/2012 on the creation of unitary patent protection and Regulation 1260/2012 on the translation arrangements were adopted on December 17, 2012 and published in the Official Journal L 361 of December 31, 2012.

The Agreement on a Unified Patent Court (UPC) was published as Council doc. 16351/12 of January 11, 2013. It is an updated and consecutively numbered version of the draft dated November 14, 2012 16222/12 containing mainly editorial amendments. According to Article 84(1), the Agreement is open for signature on February 19, 2013.

Surprisingly, the final text still contains in Article 33(2) the obligation of a regional division to refer, at the request of the defendant, an action for infringement to the central division if the infringement has occurred in the territories of three regional divisions. This provision which appeared in brackets in the draft may substantially impair the readiness of patentees to bring an action before a regional division.

UK - Conference on patent reform

Patent reform - innovation, enforcement and the future of the single European patent, organized by Westminster Forum Projects

Tuesday, 30 April 2013, Central London

"Timed as the Intellectual Property Office takes forward ongoing measures in response to the Hargreaves Review of Intellectual Property and Growth - and as EU policymakers approach a finalised unitary patent system - this seminar will bring together key industry stakeholders and intellectual property lawyers to assess the future of the UK patent framework. Sessions will focus on the year ahead for patent policy at both domestic and international levels, and will assess how reforms could promote innovation and growth in the UK economy, as well as ensure effective enforcement mechanisms for rights holders."

Guests of Honour: Andrea Liesenfeld, Directorate-General for Internal Market and Services, European Commission; His Hon Judge Birss QC and speaker confirmed from the Intellectual Property Office (IPO)

Read the entire program here.

EU - Parliament approves EU unitary patent rules

Parliament approves EU unitary patent rules, Plenary Session Competition − 11-12-2012 - 13:00

"EU inventors will soon be able to get a unitary patent at last. After over 30 years of talks, a new regime will cut the cost of an EU patent by up to 80%, making it more competitive vis-à-vis the US and Japan. MEPs cut costs for small firms and tailored the regime to their needs, in a compromise deal with the Council endorsed by Parliament on Tuesday.

"In three separate voting sessions, MEPs approved the so-called "EU patent package" (unitary patent, language regime and unified patent court)."

Read the entire press release here.

EU - Unitary Patent / AG proposes to dismiss actions brought by Spain and Italy

Joined cases Spain v. Council and Italy v. Council, Opinion A-G, Court of Justice EU, 11 December 2012, Case Numbers C-274/11 and C-295/11

"Advocate General Bot proposes that the Court dismiss the actions brought by Spain and Italy against the Council’s decision authorising enhanced cooperation in the area of the unitary patent

"Enhanced cooperation must aim to further the objectives of the European Union, protect its interests and reinforce its integration process. A decision authorising enhanced cooperation is to be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole1. The decision is adopted by the Council on a proposal from the Commission and after obtaining the consent of the Parliament."

Read the entire press release (in English) here.

Read the opinion of the Advocate General (in English) here.

EU - New draft on Unitary Patent Protection

New Article 5a of the Regulation on Unitary Patent Protection

Uniform Protection

(1) The European patent with unitary effect shall confer on its proprietor the right to prevent any third party from committing acts against which the patent provides  protection throughout the territories of the participating Member States in which the patent has unitary effect, subject to applicable limitations.

(2) The scope of this right and its limitations shall be uniform in all participating Member States in which the patent has unitary effect.

(3) The acts against which the patent provides protection referred to in paragraph 1 and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the participating Member State whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 10.

(4) In the report referred to in Article 20(1) the Commission shall evaluate the functioning of the applicable limitations and, where necessary, shall make appropriate proposals.

New Recitals 9 and 10 of the Regulation on unitary patent protection

Read the entire set of proposed changes (in English) on the Dutch IP website www.ie-forum.nl here.  

EU - The Unitary Patent Package: Max Planck publishes 12 Reasons for Concern

"The Max-Planck-Institute for Intellectual Property and Competition Law, which has functioned as a politically and economically unbiased centre of legal competence for European intellectual property legislation ever since its foundation in 1966, is a well-recognized scientific commentator and advisor on the evolution of European patent law.

"The Institute considers a balanced, innovation-friendly and uniform patent system as being indispensable for Europe. However, the current patent package is deemed to be both dangerous and misguided. While a superficial glance may create the false impression of a patent law advancement through the proposal, it instead actually threatens to forestall the necessary legal progress and innovation capacities for the foreseeable future.

"The respective concerns of the Max-Planck-Institute are shared by experts throughout Europe. Likewise, considerable parts of the industry harbor doubts as to the proposed system's efficiency. Large undertakings might indeed benefit from a reinforcement of their patent portfolios through the proposed system. Particularly small and medium-sized enterprises are however likely to experience significant obstacles to their innovation activities.

"The criticism of the package is underpinned by a series of legal arguments which can be found here. Many of these points are also uncontested in the current debate. Yet remedies are only promised for the time after the entry into force of the package.

"Experience shows that particularly in relation to legislation for intellectual property this promise for subsequent improvement is unlikely to be delivered on. Consequently, it might prove disastrous to implement a patent system which is already known to be detrimental from both the legal as well as the innovation perspectives. Much rather, the correct course must be set now. Against this background, the Institute believes it is indispensable to reconsider the content of the Unitary Patent Package afresh."