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Under the date of May 26, 2011, the EU Council has published Document 10629/11 titled Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection including a Proposal for a Council Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements. The text is said to facilitate discussions on political orientation as well as an exchange of views.

As reported earlier on this Blog, on April 14, 2011,  the European Commission had published Document COM(2011) 215/3 titled Proposal for a Regulation of the European Parliament an of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU. Meanwhile, the Mertens group has examined the proposals of the EU Commission on four occasions: on April 14, May 03, 10 May and May 19, 2011.The general gist of the deliberations was as follows:

"The delegations of the participating Member States unanimously argued in favour of rapid progress in the negotiations and advocated not to reopen issues where consensus was found during the Swedish Presidency and which were widely supported under the Belgian Presidency, in particular on the translation arrangements.

All delegations from the participating Member States expressed their general support for the Commission's proposals. The delegations of the two non-participating Member States were opposed and argued in favour of working towards a compromise between the 27 Member States."

Of course, those non-participating Member States are Italy and Spain.

However, despite the fact that the general outlines were agreed on, a number of issues were discovered which need to be resolved:

Galaxy of IP rights ... as seen by EU Commission

Today the EU Commission has published a provisional version of Document COM(2011) 287 titled Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe. In its own words this Communication presents the Commission's overall strategic vision for delivering the true Single Market for intellectual property that is currently lacking in Europe – a European IPR regime that is fit for tomorrow's new economy, rewarding creative and inventive efforts, generating incentives for EU-based innovation and allowing cultural diversity to thrive by offering additional outlets for content in an open and competitive market.

OHIM, Alicante (soon to be augmented into an enforcement agency)

Today, the EU Commission has published a Proposal for a Regulation of the European parliament and the Council on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy (COM(2011) 288).

In the paper, EU Commission proposes to entrust the Office for Harmonisation in the Internal Market with the tasks and activities relating to the management of the European Observatory on Counterfeiting and Piracy, including those concerning copyright, rights related to copyright and patents.

The IPR Strategy sets out a series of short- and long-term key policy actions in various areas which include:

Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business.

Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era.

Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.

Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works.

Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.

IPR violations: Counterfeiting and piracy are a growing threat for the economy. Between 2005 and 2009, the number of registered cases at the EU borders of goods suspected of infringing IPR increased from 26 704 to 43 572. Meanwhile, the creative industry estimates that piracy has cost the European music, movie, TV and software industry €10 billion and more than 185 000 jobs in 2008 alone. The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.

IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. In 2009 only, customs intercepted over 40 000 suspect shipments involving 118 million articles. Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales.

Also today, the EU Commission has released MEMO/11/332 on Intellectual Property Strategy – Frequently Asked Questions. Concerning Copyright, the EU Commission announces further steps as follows:

Michel Barnier, EU Commissioner for Internal Market and Services

Mr Michel Barnier is EU Commissioner for Internal Market and Services. The Commission department under his political responsibility is the Internal Market and Services Directorate General (DG MARKT). The Office for Harmonisation in the Internal Market (OHIM) falls also under his authority.

Now there are rumours that Mr Barnier is about to seek sweeping reform of intellectual property regime throughout Europe. Mr Ian Wishart today wrote on europeanvoice.com:

"The European Commission is set to announce a wide-ranging strategy on intellectual property rights (IPR) and to signal its belief that internet service providers (ISPs) should share more of the responsibility for halting illegal downloading. [...]"

An earlier report was published on euractiv.com on May 12, 2011:

"A draft of the EU's upcoming Intellectual Property Rights strategy, due out on 24 April [May], will reportedly announce upcoming amendments to existing EU law that 'should tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers'."

On November 10, 2010, Official announcement had been made to the effect that Professor Ian Hargreaves shall lead an independent review into how the intellectual property system in the United Kingdom can better drive growth and innovation. UK Intellectual Property Minister Baroness Wilcox had revealed the review would be led by the current chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School. The review had been launched by UK Prime Minister David Cameron during a speech to an audience of high tech businesses and entrepreneurs in London’s East End.

See also my earlier posting here.

Today, the Review has been published.

According to the Report's own wording, the Review’s specific recommendations would support growth of the UK’s increasingly intangibles intensive economy. Mr Hargreaves is convinced this requires:

• An efficient digital copyright licensing system, where nothing is unusable because the rights owner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.

In Mr Hargreaves' words, IP law must adapt to change. Digital communications technology involves routine copying of text, mages and data, meaning that copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, internet based businesses. If the Review’s recommendations are acted upon, the result will be stronger rates of innovation and increased economic growth. An economic impact assessment conducted by the Review team, and of course subject to the high degree of uncertainty inherent in such projections, estimates that this would add between 0.3 per cent and 0.6 per cent to annual GDP growth. The path laid down in the Review would also, over time, mean that IP law, including copyright law, would become clearer and be observed by most people without controversy.

In summary, the Review appears to be an attempt to restore common sense in IP politics, steering away from IP maximisation extremism as well as from IP abolitionist views.

Continue reading "UK: Hargreaves Review on Intellectual Property And Growth Released Today" ]]> Wed, 18 May 2011 12:47:41 +0200 http://www.ipjur.com/blog2/index.php?/archives/194-guid.html http://www.ipjur.com/blog2/index.php?/archives/194-UK-Hargreaves-Review-on-Intellectual-Property-And-Growth-Released-Today.html http://feedproxy.google.com/~r/ipjur/~3/ogOQnI2VX7I/index.php EU http://www.ipjur.com/blog2/index.php?/archives/193-EU-Patent-Is-Dead!-Long-Live-European-Patent-With-Unitary-Effect..html#comments http://www.ipjur.com/blog2/wfwcomment.php?cid=193 5 http://www.ipjur.com/blog2/rss.php?version=2.0&type=comments&cid=193 nospam@example.com (Axel H Horns)

Recently the European Commission has published Document COM(2011) 215/3 titled Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU (March 22, 2011 - Official Journal of the European Union L 76/53) authorised the Member States listed in its Article 1 to establish enhanced cooperation in the area of the creation of unitary patent protection. Article 118 (1) TFEU provides for the legal basis for creating European intellectual property rights providing uniform protection throughout the Union by means of a regulation adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure.

Article 3

European patent with unitary effect

1. European patents granted with an identical scope of protection in respect of all participating Member States shall benefit from unitary effect in the participating Member States provided that their unitary effect has been registered in the Register for unitary patent protection referred to in Article 12(1)(b). European patents that were granted with different sets of claims for different participating Member States shall not benefit from unitary effect.

2. A European patent with unitary effect shall have a unitary character. It shall provide uniform protection and shall have equal effect in all participating Member States. Without prejudice to Article 5, a European patent with unitary effect may only be limited, licensed, transferred, revoked or lapse in respect of all the participating Member States.

3. The unitary effect of a European patent shall be deemed not to have arisen to the extent that the European patent has been revoked or limited.

The main trick of the proposed Regulation depends on the introduction of a so-called European patent with unitary effect. The unitary effect flag will be administered by the European Patent Office:

The dice is cast: Yesterday, the Court of Justice of the EU issued a damning verdict to pending plans for creating a new trans-EU Patent Court on the basis of an international agreement. Today, the EU Council has nodded through a license for 25 of 27 EU Member States (i.e all Member States except Italy and Spain) to start negotiating on the particulars for an enhanced co-operation in order to create a, well ... not so unified EU Patent (because of it will spare out Italy and Spain).

As far as I have understood that matter the present state of affairs implies that most likely there will be no centralised court system for conflict resolving with regard to EU-2 patents emerging from the envisaged enhanced co-operation. The only way to do the full menue would be to make come true a real miracle: The 25 Member States now participating in the enhanced co-operation would have to agree on a hitherto un-sketched new Patent Court which is

• strictly subordinate to the Court of Justice of the EU, and
• compatible with the EU Treaties despite the fact that not all Member States are participating.

At the time being I do not have the slightest idea as to how to make such a thing technically working but, maybe, brighter minds in the EU Commission are already busily thinking and mooting (Hello Mr. Gaster, are you still involved?).

There are indications that the EU Commission is set to table a proposal for the particulars of the enhanced co-operation by March 30, 2011. Perhaps even more might happen: Reports say that Italy and Spain might go to Court to stop the enhanced co-operation (@mrentem).

(Photo (C) 2011 Hungarian EU Presidency)

]]> Thu, 10 Mar 2011 16:59:25 +0100 http://www.ipjur.com/blog2/index.php?/archives/192-guid.html http://www.ipjur.com/blog2/index.php?/archives/192-EU-Patent-The-Smallest-Of-All-Perceivable-Solutions-Is-Coming.html http://feedproxy.google.com/~r/ipjur/~3/DMi_nuf9p2U/index.php EU http://www.ipjur.com/blog2/index.php?/archives/191-The-Court-Of-Justice-Of-The-EU-Kills-Patent-Court-Proposal..html#comments http://www.ipjur.com/blog2/wfwcomment.php?cid=191 3 http://www.ipjur.com/blog2/rss.php?version=2.0&type=comments&cid=191 nospam@example.com (Axel H Horns)

In an earlier posting I had reported on the  Opinion 01/09 - Statement by the Advocates General of the Court of Justice of the European Union concerning the European Patent and the Community Patent Court as planned by the EU Council; see my earlier postings here, there and there. The date on that Document (Original in French only) was July 02, 2010; however, the Opinion had not been published on the Official website of the Court of Justice of the European Union (formerly known as European Court of Justice, or ECJ for short). A link to the French version had been posted on August 19, 2010, on EPLAW Patent Blog.

As I wrote in my earlier posting I won't ever understand those games played by interested circles inside of and close to the EU Council in a futile attempt to withhold such important documents from the eyes of the general public. Now the Court has continued this line of officially hiding this matter. Although the final Opinion on the Court was finalised yesterday, you won't find any papers concerning A 01/09 on the Curia website.

The  statement issued in the name of the Attorneys General of the Court had made clear that they were not opposed to the general layout of the proposed Patents Court (PC) to resolve certain classes of disputes between individuals; however, they raised their concerns concerning a number of details, including the envisaged language regime.

Normally it is custom that the final text approved by the Court does not differ much from the proposal of the Attorney General.

However, in this particular case, that rule of thumb did not work. The Court re-considered the basics of the proposal on the creation of a unified patent litigation system and issued a crushing statement.

Continue reading "The Court Of Justice Of The EU Kills Patent Court Proposal." ]]> Wed, 09 Mar 2011 16:06:25 +0100 http://www.ipjur.com/blog2/index.php?/archives/191-guid.html http://www.ipjur.com/blog2/index.php?/archives/191-The-Court-Of-Justice-Of-The-EU-Kills-Patent-Court-Proposal..html http://feedproxy.google.com/~r/ipjur/~3/9B33xTXpAMc/index.php EP http://www.ipjur.com/blog2/index.php?/archives/190-EPO-Publishing-Something-Like-A-White-Paper-In-Exchange-For-Personal-Data.html#comments http://www.ipjur.com/blog2/wfwcomment.php?cid=190 4 http://www.ipjur.com/blog2/rss.php?version=2.0&type=comments&cid=190 nospam@example.com (Axel H Horns)

Today, the European Patent Office (EPO) has made available (@EPOorg on Twitter) a second edition of An overview of the national patent litigation systems in Europe available for download on-line. The text provides an overview of the national patent litigation systems across the European Patent Organisation's 38 Contracting States and presents an at-a-glance description of the different national revocation, nullity and infringement procedures currently in place. The competent courts dealing with these matters at first instance and appeal are also depicted.

In principle this publication should be warmly greeted as the EPO is well known for providing high quality contents on its website.

However, what has irritated me in this case is that they don't simply offer a download link as usual but lead me to a form (see screenshot picture above) where I am requested to fill in a number of mandatory fields before going on with the download:

• First name
• Surname
• Job title
• Organisation/Company
• City
• Country
• e-mail address

What if a member of the general public is interested in this matter without being affiliated with an organisation or a company? Is EPO about to refuse to give away such papers to interested private individuals? Well, and there are "Terms of Use":

"Patent Litigation in Europe has been prepared by the European Patent Office (EPO). Although the study has been prepared with great care, it cannot be guaranteed that the information therein is always accurate and up to date. The information is not meant to be a comprehensive study, nor to provide legal advice.

The Patent Litigation in Europe study and any of its parts may be modified or translated on condition that the EPO is credited as the provider of the original, and that it is clearly stated that changes have been made to the original material, that the modified or translated version has not been authorised by the EPO, and that the EPO shall not be responsible for the correctness of any such modified or translated version. Any other reference to the EPO, and in particular its official logo, shall be removed from any such version.

This document may be used and reproduced for non-commercial purposes, provided that appropriate acknowledgement is given to the EPO. Reproduction for commercial purposes is subject to the prior written approval of the EPO."

Let us repeat: "This document may be used [...] for non-commercial purposes [...]". Well, does that mean that e.g. patent attorneys are not allowed to use that paper because of their dealings are inherently of some commercial nature? Maybe that someone at EPO might wish to learn something about CC licensing instead.

So: Why on earth do EPO dare to make download of this paper dependent on prior filling in lots of personal data into download form? Does EPO staff now think that the institution is entitled to act like any commercial company offering "white paper" in exchange for personal data?

[UPDATE 2011-02-01 16:50] Obviously one hand at the EPO does not know what the other is doing. Thanks to @Topalovi I now know that the paper is also directly accessible via the EPO search engine.

Point 5 on the agenda was devoted to the Proposal for a Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection (JURI/7/04915 2010/0384(NLE) COM(2010)0790; Rapporteur: Klaus-Heiner Lehne (PPE)).

The report goes as follows:

Today I was able to gain access to EU Commission Document COM(210) 790 final - kudos to @EUpexian on Twitter. The paper is titled Proposal for a Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection. It cumulates in a proposal for a Council decision as follows:

Article 1

Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom are hereby authorised to establish enhanced cooperation between themselves in the area of the creation of unitary patent protection, by applying the relevant provisions of the Treaties.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

For the Council

The President

Well, this appears to be quite brief a statement. In its explanatory section, the Document reads as follows:

I just spotted the above-pictured Tweet of Mr Vincent Van Quickenborne, Minister for enterprise and streamlining policy of Belgium.

The linked Document says:

"After more than 40 years breakthrough in realizing EU Patent supporters put their own unified EU patent patent system

Brussels, December 10, 2010 - In the European Council Competitiveness, today 11 Member States have expressed their agreement to cooperate for the realization of EU patent. The 11 countries - including France, Germany and Britain - like to implement as soon as possible a unified patent system so that companies can get at a reasonable cost an adequate protection of their knowledge available in all participating countries. [...]

At the European Council, 11 countries have today a request sent the European Commission on the basis of compromise proposals Belgian Presidency of the proceedings of the enhanced cooperation to get started. The Lisbon Treaty provides that if in a given case unanimity can not be found within a reasonable period of at least nine Member States may request addressed to the Commission for a private arrangement between themselves to work. The other Member States can always join later. This procedure is used only very exceptionally. Other examples were the Shengen Convention and the Euro, which does not once all Member States have participated, but afterwards many candidates joined. The Commission will now prepare a proposal for the treaty enhanced cooperation to formalize"

More details will follow.

Interpreter in the EU Parliament (Strasbourg)

Earlier this month I reported on an epic failure of the EU Council to reach a political agreement on the question of languages and translations for the planned EU Patent. The representative of the Spanish Government had stubbornly refused to seriously discuss any compromise on the question of how many translations shall be required for a EU Patent. The proceedings in the extraordinary session held on November 10, 2010, must have been so depressing that Mr Vincent Van Quickenborne, Minister for enterprise and streamlining policy of Belgium, Chair of the meeting on behalf of the Belgian EU Presidency, in the end uttered in despair

"Things are clear now: there will never be unanimity on an EU patent".

Well, can this sentence be taken at nominal value?

I do not have any privileged background information but I think it makes sense to discuss two alternatives:

Continue reading "Will There Ever Be Unanimity On An EU Patent?" ]]> Thu, 18 Nov 2010 20:26:35 +0100 http://www.ipjur.com/blog2/index.php?/archives/186-guid.html http://www.ipjur.com/blog2/index.php?/archives/186-Will-There-Ever-Be-Unanimity-On-An-EU-Patent.html