Final EU patent deal could be in reach

22 Nov 2012 | News
MEPs reached a tentative compromise with Member States this week on the Single Patent. All that’s needed now is for EU ministers give the proposal a nod in December and for the European Parliament to vote yes too

Member States and MEPs have reached an informal agreement to end the latest deadlock over the Single EU patent. "After months of bickering, the Council has now finally moved and sent Parliament a somewhat acceptable proposal," said Bernhard Rapkay MEP (S&D-DE), rapporteur on the single patent regulation.

The Cypriot Council Presidency was more enthused, putting out a statement saying it had received “overwhelming support” for the proposal from lawmakers.

Under the new proposal (see sidebar) text would be added to the legislation to ensure compliance with EU law, something that MEPs said was not the case after heads of state and government decided to unilaterally remove a number of articles from the original regulation. The move was intended to limit the role of the EU Court of Justice, much to the dismay of the European Parliament.

The newly proposed addition to the EU patent regulation:

Article 5          
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.

Rapkay told Science|Business he is confident, having spoken to legal experts, that the new proposal reinstates the possibility of making an appeal to the EU Court of Justice in the case of patent infringements. MEPs and legal experts have argued that this is a requirement, because the Lisbon Treaty calls for, “uniform protection of intellectual property rights throughout the Union.” More pointedly it is needed because the EU Court of Justice itself struck down a previous deal on the patent last year, saying it didn’t give the Court enough authority.

New text is not the best

The ability to enforce or challenge a patent in a single legal 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 current situation. Presently, 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.

“The new text is not the best, because that would have been the retention of the articles that the European Council wanted to delete, but the text is as good as can be under the given circumstances,” said Rapkay. Lawmakers hope that the new text will link the regulation, which is based on EU law, with the international treaty establishing the new court system, ensuring that the EU Court of Justice would retain competency on the topic.

Rows on the European patent are long-running, but the current stalemate arose after EU heads of state decided to alter a deal between the EU Parliament and Council of Ministers in July. MEPs were appalled that the European Council had done this without consulting Parliament, and at the time called the changes to the agreement an “emasculation” of the proposed EU patent system.

Ill-equipped and overloaded

The European Council scrapped a number of articles to limit the role of the EU Court of Justice in European patent law, in order to keep the UK on board. 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 to European law and to fulfil its role as the EU’s supreme, constitutional court.

The proposal has yet to be officially adopted by the Council of Ministers, which they could do at their 10 December meeting. If the Council approves the agreement without any further changes, the European Parliament could then adopt the patent package in its December plenary session, putting an end to decades of negotiations.

The European Parliament would need to check the final text of the package before it could move to a formal endorsement, said the Chair of the European Parliament’ s Legal Affairs Committee, Klaus-Heiner Lehner MEP (EPP-DE). The European patent might just become a reality, “if it turns out that everything is consistent and the Council keeps its word this time,” Rapkay concluded.

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