Unitary patent: Finding agreement with Parliament
By Sophie Mosca | Thursday 12 July 2012
The Cypriots will have the job of steering the introduction of the unitary patent on which the European Council of 28-29 June sealed an agreement. This will first and foremost entail working out an agreement with the European Parliament because the compromise endorsed by the EU’s heads of state and government changes the agreement reached earlier with members of the EP. They reject what Bernhard Rapkay (S&D, Germany) describes as a “flagrant” and unacceptable breach of procedure.
The location of the central division that will head the patent court system had earlier been holding up all progress as Germany, France and the United Kingdom battled over hosting the court’s seat.
Under the compromise worked out, Paris will be home to the central division. But to please the United Kingdom and Germany, litigation on chemistry (including pharmaceuticals) and medical biotechnology and hygiene will be heard in London, while cases related to mechanical engineering will be heard in Munich.
The heads of state proposed to do away with the possibility for regional and local divisions to submit questions to the EU Court of Justice (preliminary ruling) to alleviate British concerns about lengthy procedures and the intervention of the court’s non-specialised judges. At the insistence of the Germans, it was agreed that, for a dispute on the validity of a unitary patent, the parties may choose to bring the case to the central division when the defendant is domiciled outside the EU and that if a revocation action is pending before the central division, the patent holder should have the possibility of bringing an infringement action to this same court.
The European Parliament frowns on the deletion of Articles 6 to 8 of the draft regulation. For Klaus-Heiner Lehne (EPP, Germany), chair of the Committee on Legal Affairs (JURI) that is responsible for the issue, “if the Council endeavours to delete Articles 6-8, it will make the proposal an empty shell”. The vote in plenary, initially set for 4 July, was postponed. This matter was scheduled to be debated by members of the JURI committee with the Council, Commission and the European Parliament’s legal service, on 10 July.
The existing European patent, governed by a 1973 intergovernmental agreement adopted by 38 countries, including the EU member states, is issued by the European Patent Office, but is ten times more costly than an American one. Applications for the future patent may be filed in any EU language and must be accompanied by a complete translation in one of the three official languages of the European Patent Office (English, French and German) and a summary in the other two. The stalemate by Italy and Spain on the language rules led the other 25 states to use enhanced cooperation.