EU leaders in deadlock over European patent

The controversy over the single European Patent is raging once more, with the European Parliament’s Legal Affairs (JURI) Committee meeting in Brussels earlier today, (11 October), while their colleagues of the Council of Ministers convene in Luxemburg to discuss the stalemate. “It is now up to the Council of Ministers to act and provide a solution for the problem the European Council has created,” Klaus-Heiner Lehner MEP (EPP- DE), Chairman of the JURI committee, tells Science|Business. Meanwhile a spokesperson for the Council says, “In a way, the ball is in the Parliament’s court.”

"We will not, and cannot accept any proposal that the president of this house will not be able to sign because it does not conform with European law," Bernhard Rapkay MEP (S&D-DE), rapporteur on the single patent regulation, told members of the JURI committee this morning. During the meeting, MEPs stressed that the Member States "alone are to blame" for the stalemate.

Behind the scenes, however, policy makers in Brussels are frantically looking for a way to break the deadlock that arose after EU heads of state unilaterally decided to alter a deal between the EU Parliament and Council of Ministers in July. MEPs are still appalled that the European Council has done this without consulting Parliament, and at the time called the actual changes to the agreement an “emasculation” of the proposed EU patent system.

The European Council had decided that the role of the EU Court of Justice in European patent law should be limited, in order to keep the UK on board. A number of articles were deleted from the agreement, removing the possibility of an appeal to the EU Court of Justice in case of patent infringements. In effect, this would mean that European patent litigation becomes the sole responsibility of a new - non-EU - patent court, to be set up by international treaty and co-hosted by Paris, London and Munich.

The UK has long argued that the EU Court of Justice is ill equipped to deal with patent law, and is already overloaded. Others argue that the EU Court has to be part of the equation in order to conform with European law.

The ability to enforce or challenge a patent in a single action everywhere in the European Union (apart from Italy and Spain, which have opted out of the agreement), would be a major 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 very expensive, but it can cause confusion when different courts reach different conclusions.

Keeping out the EU Court of Justice

Articles 6-8, which were originally part of the deal struck by the European Parliament’s JURI Committee and Council of Ministers, would put the issue of infringements, and what amounts to infringement, before the EU Court of Justice. MEPs and many legal experts say this is a requirement, because the Lisbon Treaty calls for “uniform protection of intellectual property rights throughout the Union,” and because the EU Court of Justice already struck down a previous deal on the patent last year, saying it didn’t give the Court enough authority.

Not everybody agrees though, Robin Jacob, Professor of Intellectual Property Law at University College London believes scrapping articles 6-8 would be perfectly legal. “All legal opinions we have seen so far are written by people who know nothing of patent law,” Jacob told Science|Business.

“The basic heart of the proposed objection is that somehow patent law would become fragmented, and you would have different possibilities in different countries.” Jacob said, adding “That is completely not true.” The new patent court would resolve it for the whole of Europe, Jacob said. The fact that the scope of the patent would be determined by non-EU treaties, “doesn’t stop it from being unitary,” Jacob noted.

Jacob doesn’t see why there is any problem in scrapping articles 6-8 from the EU regulation, as it will still be in the international treaty that sets up the new patent court. The new European patent court would apply its rulings uniformly throughout Europe, Jacob says, “There is no question of fragmenting anything.”

Jacob points out that it is unclear how far the EU Court of Justice would get involved if the articles were not be scrapped, and that the Court could then decide that the scope of the patent would be part of its jurisdiction. “If they do that, they would be virtually taking over the whole of patent law. Especially if they would say that it would include validity, which they might. Any patent case where such an issue arose could be delayed by two years,” Jacob stressed.

Slowness is not a problem

Geert De Baere, Assistant Professor of EU Law and International Law at KU Leuven, does not agree. “I don’t see why slowness would be a problem in this case, and not in other intellectual property matters where the Court of Justice has jurisdiction,” De Baere told Science|Business. While admitting that the Court sometimes takes a lot of time to complete a case, De Baere said that the Court’s speed has increased greatly over the last years, even though its caseload is growing.

The UK’s contention that the EU Court of Justice doesn’t have enough expertise is also a “weak argument,” De Baere said, “It doesn’t show a lot of understanding about the functioning of the Court and its current jurisdiction.” The EU Court of Justice often settles extremely technical disputes in sectors such as market organisation, VAT cases, coordination of social security systems and a great number of intellectual property cases, De Baere believes.

“I don’t see why the Court would suddenly not have any expertise, or would not be able to acquire expertise in this matter,” De Baere said.

Stay out of patents

The EU Court is excellent for constitutional matters, but not for commercial work, Jacob claimed, noting there is not a single commercial judge on the bench. “They are not a good commercial court,” he said.

“What the EU Court of Justice has done in patents is dreadful,” Jacob added, pointing towards the Court’s ruling last year which severely limits the patentability of embryonic stem cells. This is an “absolute disgrace,” and has put back the potential of scientific research into serious human diseases very significantly. “Any court that comes to that conclusion can’t be trusted,” says Jacob.

“Their record in trademarks is of an increasingly naïve, or self-contradictory series of decisions,” Jacob says. “They should stay out of patents. They’re not doing a good job on it, they are not doing a good job on intellectual property generally,” Jacob said.

Political battle

Apart from the debate about legality, the European Council’s decision to scrap the articles has sparked a fierce political battle with the European Parliament about the functioning of the EU legislature. MEPs say that the EU heads of state had no business meddling directly with the legislative process in the first place.

Whereas the European Commission introduces bills, and the European Parliament and Council of Ministers hammer out compromises over them and – eventually - sign them into EU laws, the remit of the European Council, composed of Prime Ministers and Presidents, is to set out the broad political direction, and amend the EU’s founding treaties, which govern the way the European Union functions.

“It goes against the spirit of the function of the European Council within the EU,” explains De Baere. In particular, one article in the EU treaties that says, “[The European Council] shall not exercise legislative functions.” The fact that the European Council is composed of the direct bosses of the members of the Council of Ministers makes this quite a confusing arrangement.

Members of the European Parliament, which has become increasingly powerful under the 2009 Lisbon Treaty, are keen to remind the EU’s heads of state and government that the EU now has a legislature composed of two chambers.

A mystery

“Although the European Council doesn’t formally legislate in this case, and only ‘suggests’ scrapping articles 6 through 8, this seems to be a very questionable matter to me,” De Baere says. Since the Council of Ministers apparently is following the suggestion by the European Council, the EU heads of state and government are “directly intervening in the EU legislative process.”

“How the European Council, and especially the Council of Ministers – which is used to working with the Parliament – ever thought that the European Parliament would just accept this, is a mystery to me,” De Baere says.

UK versus the rest

“To me it seems rather like this entire operation is a thinly-veiled attempt by the UK to limit the power of the EU Court of Justice, dictated by an attitude that since the Cameron government can only be described as ‘hostile’ towards the Court,” said De Baere, who added that he is disappointed that apparently the other Member States have decided to go along with the UK’s demands.

“The hostility to articles 6-8 is unanimous among all European patent judges,” Jacob counters, pointing out that it is “particularly strongly felt” by some of the Germans.

If the European Parliament and Council of Ministers are able to find a way out of this impasse, the EU law setting up the single patent can be adopted by both institutions. Independently, Member States will have to sign the international agreement setting up the new European patent court. At least 13 member states will have to ratify the agreement for it to enter into force.