European Parliament blocks EU patent deal

Last update: 5 July 12:47 CET

In a surprise move, the European Parliament has decided to postpone tomorrow's vote (4 July) on the EU single patent legislation, in the wake of a landmark deal reached by heads of state and government last week. MEPs say the move by the European Council to exclude the EU Court of Justice from the patent litigation process - without consulting Parliament - would “emasculate the proposal.” Commission President José Manuel Barroso has already indicated he supports Parliament in its position.

Klaus-Heiner Lehne (EPP), Chair of the European Parliament’s Legal Affairs committee said parliament would see this through until the end, "If the Council is working to delete articles six through eight, it would emasculate the proposal. We want clear confirmation that these three key articles are to be deleted. If so, this will go straight to the European Court of Justice as a 'crash test' case."

Last year, the EU Court of Justice ruled that setting up the patent court, without the possibility of appeal at Court of Justice level would be in breach of the European Union treaties - and thus illegal. The UK had been very eager to remove Court of Justice responsibilities from the single patent agreement, claiming the EU's highest court was already overloaded.

Earlier agreement

Last week's European Council agreement would alter a deal reached by MEPs and Council negotiators in December 2011. The deal included an agreement on a package of EU patent legislation, which includes the unitary patent, the language arrangements and the Unified Patent Court. Nevertheless, Parliament was forced to postpone its vote on several occasions as the question of the location of the seat of the unified court had yet to be decided by the member states.

The EU heads of state finally reached an agreement last week, and decided to split to new patent court between Paris, London and Munich.

Commission President José Manuel Barroso recognizes that the landmark deal on Friday saw key elements of the original Commission proposal excluded. In a speech to the European Parliament, Barroso told MEPs this morning (3 July): "There was a compromise on this between the participating member states, but it unfortunately comes at the price of the deletion of important Community elements of the original Commission proposal.”

Barroso went on to say that “the Commission has therefore reserved its position and I have made this reserve very clear to heads of state and government during the European Council.  The situation will now require an assessment between the three institutions. We are ready to work with you on this."

Marianna Karageorgis, a spokesperson for the Cypriot EU presidency - which has kicked off this week and inherited the deal from the Danes - calls the agreement reached by the European Council "(...) a wise decision taken by the European leaders to break a deadlock," and pass overdue legislation which "is of great importance for the EU," she told Science|Business.

Karageorgis went on to say, however, "The Cyprus Presidency has no intention to undermine the European Union Court of Justice in the application of the patent package. On the contrary, we are looking into the various options in order to keep an active role of the Court in addressing these cases."

Bernhard Rapkay (S&D), the MEP responsible for steering the unitary patent legislation through Parliament says the Council's move was a "scandalous breach" of procedure, calling it "unacceptable." Rapkay also added that the Council's haggling over the patent court seat resembled an "oriental bazaar".

Patent Court vs EU Court

The Unitary Patent and its associated court are already compromised by the fact that Spain and Italy declined to join because both are aggrieved patents will not be required to be translated into Spanish and Italian. That led the 25 other member of the EU to invoke the ‘enhanced cooperation’ mechanism in March 2011, under which it is possible for a number of states to form a breakaway group and adopt common rules, if EU-wide agreement is impossible.

Because part of the patent deal is now based on an international treaty, heads of state and government of the participating member states will also have to sign the agreement at a separate conference, after which national parliaments have to ratify the treaty.

Last week, Matthew Fell, Competitive Markets director with the CBI – a major British business association – had been relieved to hear the European Council decided to scrap involvement by the EU Court of Justice, “Businesses will be reassured that the European Patent scheme will not fall under the jurisdiction of the European Court of Justice, because of the risks involved in a non-specialised court having a say in decisions over their intellectual property," he said.

Significant step

The ability to enforce or challenge a patent in a single action everywhere in the European Union apart from Italy and Spain, would be a significant advance on the situation at present. Currently, patents granted by the European Patent Office (EPO) in Munich must be challenged or defended in national courts. Not only is this expensive, but it can cause confusion when different courts reach different conclusions.

Under the current system, an inventor who seeks a patent across the EU has to file to the EPO and have the resulting approved patent translated and re-filed for every individual EU member-state in which the patent is to be recognised. Under the Unitary Patent, the translations are cut back to just the three official EPO languages of English, German and French, and the patent doesn’t have to be re-filed country-by-country.

Legal Affairs committee MEPs will be meeting with representatives from the Council, Commission and Parliament's Legal Service on 10 July. The meeting is scheduled to find out how to continue procedurally, not to address the actual dispute about the Court of Justice. If Parliament and Council, which make up the EU legislature, would be able to reach a deal over the summer, the next opportunity for a plenary vote in the European Parliament would be in October - which some Parliament officials already say is unlikely.

Cypriot presidency spokesperson Karageorgis told Science|Business that the member states are "committed to work with the European Parliament" in order to achieve an agreement on the unitary patent "as soon as possible."