Visae Patentes

Anti-Software-Patent Campaigners count on François Hollande

2012-05-25T08:57:00.003+02:00

In our today's article "Anti-Patent Campaigners put their trust in François Hollande as EU Council attends to Unitary Patent Court again" on the ksnh::law blog we attend to the reopening of negotiations on the Unitary Patent Court at next week's Competitiveness Council meeting on May 31/June 1 (see draft agenda, item 19) and the influence anti-software-patent campaigners such as the French April group may have on the process now as socialist François Hollande took office as the new President of France.

In fact, Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team and now Deputy Minister responsible for SMEs, gave some disturbing answers (pdf, french) in a tendentious pre-election questionnaire regarding issues like computer-implemented inventions, the EPO, or the planned EU Unified Patent Court:

The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
It is essential that the patent office’s practice is consistent with what tax payers and the public expect of the patent system.
A reform of the control structures of the EPO appears to be required. The European Union as the major legislator of innovation policy in Europe should have more control.
“I am unhappy with creating specialized courts entrusted to ”expert judges” from the group of patent attorneys.
It has already been found in the US that the patent chambers of the CAFC unwarrantedly extended the scope of patentability to sectors which the patent system was not made for.
It is unjust that patent offices and firms who should execute the industry policy as set by the legislator can exercise legislative power by defining this policy themselves.

Those pre-election opinions of Ms Pellerin and Mr Hollande pretty much sound like what Lionel Allorge, President of the April group, expects of Mr Hollande at the coming Competitive Council:

“With this first Competitiveness EU Council, the French president and the government have a unique opportunity to act against software patents and on the legal uncertainties that threaten Free Software as well as many companies, especially SMEs and SMIs, by preventing them from innovating. [...] An overhaul of the entire European patent system is essential to avoid getting into a situation similar to that of the United States, in which millions of dollars are wasted because of an out of control patent system, and to ensure a democratic control over the patent system.”

Amendments to the German Patent Act (PatG)

2012-05-20T22:46:00.003+02:00

Should you be interested in the latest amendments to the German Patent Act (Patentgesetz, PatG), you may have a look at our ksnh::law blog, where we provide an introduction in both English and German:

The respective proposal of Federal Minister of Justice Sabine Leutheuser-Schnarrenb erger (Liberal Democrats/FDP, @sls_bmj) was approved this week by the Federal Cabinet and will enter into force as soon as the Federal Parliament ("Bundestag") approved is as well. The purpose is to reduce bureaucracy and providing for more flexible and cost-efficient proceedings before the GPTO.

For applicants, basically three amendments are good news:

After the introduction of the electronic case file system ElSA at the GPTO the Amendment clears the path for public access to the electronic ElSA files, not less than 9 years after the EPO introduced online file inspection.
In future, the search report will provide a full opinion on patentability (novelty, inventiveness, etc.).
The term for filing a translation of application documents filed in a foreign language is prolonged from 3 to 12 months, in case the application is filed in English or French.

As the GPTO will nevertheless draw up a search report even if the translation of an English or French application has not yet been submitted, English and French filers may want to request a prior art early enough e.g. upon filing) and obtain a comparably cheap (300 EUR) opinion on patentability from the GPTO without the need of translating their application

The Copyright Controversy in Germany: 'We are the Autors' versus 'We are the Citizens'

2012-05-18T00:07:00.000+02:00

On May 10, 2012, renowned German weekly quality newspaper 'Die Zeit' published an appeal against theft of intellectual property with the flashy title "Wir sind die Urheber!" (we are the authors), a clear - and surely wanted - allusion to the famous battle cry "Wir sind das Volk!" (we are the poeple) of East Germans during the uprise against the former GDR regime in 1989/90 which soon lead to the collapse of the East German state and later to the German reunification.

The Appeal, coordinated by 32 years old German author and producer Matthias Landwehr and meanwhile undersigned by more than 4.000 German authors, screenplay writers and other creative artists, is - legitimately - inteded to emphasise author's rights and to defend their copyright-based commercial interests in the ongoing copyright debate driven by the internet-affine Pirate Party (Piratenpartei) and its anti-copyright attitude aiming at weakening copyright law and legalization free copying. The translated author's appeal reads as follows:

We are the authors!
Against intellectual property theft

As writers and artists, we follow the attacks against copyrights with concern and incomprehension. Copyright is a historic achievement of civil liberty against feudal dependence and it guarantees the material basis for individual creation.

The conflict of interest between authors and exploiters, as alleged in this context, draws an absurd picture of our working conditions. In a society characterised by the division of labour artists and give the marketing of their works into the hands of publishers, galleries, producers and collecting societies, if they represent and defend their interests in the best possible way. The new realities of digitization and the internet do not justify profane intellectual property theft, or even to call for its legalization. On the contrary, it is necessary to strengthen copyright protection and adapt it to today's conditions of rapid and massive access to the products of intellectual labour.

Copyrigt law provides that we the artists and authors can live by our work and protects us all even against global internet corporations, whose business model accepts the disenfranchising of artists and writers . The everyday presence and the benefits of the internet in our lives cannot justify theft and is not an excuse for greed or stinginess.

The association of the autor's slogan to the politically and historically loaded parole "Wir sind das Volk!" is no coincidence and intends to emphasis the aspect of freedom of their matter by creating a - rather exaggerated one may say - link to political freedom movements like the French Revolution (cf. German dramtist Georg Büchner's 1835 novel "Dantons Tod" [Danton's death]) or the German Civil Revolution of 1884, the so called 'Märzrevolution' (cf. German poet Ferdinand Freiligrath's 1849 poem "Trotz Alledem"). In this regard, German readers may find the article "Geschichte eines deutschen Rufes" interesting.

But this sort of construed historical legitimation of a modern concern is not reserved to authors and artists defending their personal rights by reminding us to the origins of (German) copyright law in the European freedom movements of the 18th and 19th century ("historic achievement of civil liberty against feudal dependence") resulting in the Berne Convention of 1886 as the first international agreement governing copyrights, but may also be utilised by modern "digital freedem fighters", as they may see themselves, and their political arm of the European Pirate Parties.

Consequently, within a few hours after publishing of the author's appeal an opposing initiative satirising the first appeal in not less plain words has been initiated under the name "Wir sind die Bürger!" (we are the citizens). The translation of this pirate's appeal, as initiated by media educator and member of the Green Party Thomas Pfeiffer (@codeispoetry) who as a social media consultant is not that neutral but has to defend his business model as well, reads as follows:

With great concern we, the citizens follow the discussion about copyright and its enforcement on the internet. We do not want to abolish copyright. To the contrary, we want copyright to become fit for the future but that means that it has to converge towards social realities.

We support that people who want to make a living from their art and their creative work are provided with the conditions required to do so. These include

collecting societies,

terms of protection and

payment models on the internet.

Each author should be able to decide for himself what should happen to their works - an what should not.

The internet dramatically changes the framework for cultural creativity. Suddenly copyright issues are relevant for all of us - even for lay people. [...] We, the citizens are exaggerated with the rules, if we get creative on the internet. At the same time, professional creatives are rightly outraged that their works are used without payment.

We must design the legal framework so that the interests of artists are respected - and that, at the same time, as many people as possible consider these rules fair and respect them. This is the only way to increase the acceptance of the value of copyrighted content!

We do not want that copyrights are enforced by unreasonable means. [...] We want a copyright an therefore hold out our hands to all creative people and their business partners. Let us join forces to look out for a solutions which equally respects the author's and artist's right of freely disposing of their works as well as the right of all people to live without repression and surveillance.

Moderate voices from politics. Since the two appeals articulate legitimate interests in a more or less reasonable way, most responses from either side were controverse but reasonable. For examample, an MP of the Green Party feared that the author's initiative would only increase the divide as in times of intenet-driven social upheaval intelligent copyright regimes are required insted, while representatives of the Pirate Party occasionally recommended to take the author's criticism seriously. The chairman of the conservative group (CDU/CSU) in the German Bundestag, Volker Kauder expressed his understanding that author's and musician's demand to protect their intellectual property also on the internet but also warned that the internet should not be regarded as an opponent of but as a chance for culture and creatives.

Radical positions. Some hardliners on the anti-copyright side, however, exceeded the framework of democratic discourse and only tried to destroy any discussion, such as those hackers of the Anonymous movement who perfidiously tried to compromise artists supporting the author's appeal by disclosing personal data on an internet pillory. Clearly, such practice demonstrates a totalitarian attitude aiming at muzzling and outlawing ideological opponents, this time authors and creative artists next time maybe ethical or religious minorities. A destructive attitude demonstarted also a campaign called "Wir sind Filesharer" (we are file sharer) that openly manifests "we ... on your copyright, we ... on your law, we ... on your intellectual property", a slogan that appears to be the result of a consequent further development of the statements of Julia Schramm, an 28-years-old wanna-be leader of the German Pirate Party and egocentric writer of an "ego-novel" for which she collected a record breaking advance payment, who innocently confesses that she considers intellectual property "disgusting".

The role of the collecting societies. Based on the author's argument that copyright protects against global internet companies whose business models are based on disenfranchisement of artists and writers, the relationship between author's and collecting societies was addressed by assuming that the success of those copyright-ignorant business models may be a consequence of the collecting societies' inability to adapt to the internet age to the benefit of authors and artists.

In a position paper (in German) of the collecting society VG Wort, the current copyright regime is strongly defended:

"The author is the creator of the work. He is entitled to moral and exploitation rights. Use of works without permission of the copyright holder is illegal if not expressly permitted by law. Amendments and changes in work generally require permission from the copyright holder. What is allowed, however, is free usage of a work for creating a new independent work. In the digital world, we should stick to theses principles."

Questionable positions. In a much discussed blog post titled "You are not relevant to the system", prominent lawyer-blogger Udo Vetter, being well-respected among German pirates and their sympathisers, considered it wise to accuse the authors of taking themselves too seriously and to play off their concerns against the freedom of speech as he considers a free internet more important than the cultural contribution of authors and creatives:

"It is better if everybody can freely express his/her opinion online as compared to everything going down the drain just because a few writers think they have the unconditional claim on a solid livelihood against society."

Together with Thomas Stadler, another prominent IP-critical lawyer-blogger (internet law), Vetter took the somewhat creative position that social obligations of properly rights (in rem), as codified under Art. 14 (2) GG of the Germany Constitution ("Property entails obligations. Its use shall also serve the public good") would also apply to intellectual property (which might be true) even though it is the basic argument of anti-copyright campaigners that legal concepts from the material world like "ownership" or "theft" cannot be transferred to the digital world as something like "intellectual" property simply does not exist.

Vetter: "The controversial concept of intellectual property is so naturally taken for granted as the assertion that making a digital copy is "profane theft". Those who take maximum positions very self-evidently should not be surprised if the fragility of such positions may be demonstrated by a few words only. Thomas Stadler has already done so on his blog with some relevant arguments regarding the social obligations of property.

Stadler: "Those who rely on property rights must also recognize that the property is subject to the social obligations. Since the creation of a mental work also is a social process - another fundamentally difference over tangible property - the social obligation of "intellectual property" is even more pronounced, not least because of its enormous importance for education and culture."

What does Stadler mean by "creating a mental work is a social process"? Is that meant to be an ideological basis for expropriating creative artists since, in reality, their works are only results of social processes visualised by the artist who only acts as a medium? Julia Schramm would readily support such approaches as for her artists only are "filters" for what is in the world and belongs to all. That in fact immediately results in the concept of "publicly owned art" (volkseigene Kunst) which was a general doctrine in the communist German Democratic Republic (GDR) and leads us back to the historic slogan "Wir sind das Volk".

All this was commented by Christoph Nebgen, a third lawyer-blogger, in a posting titled "with all due respect, dear colleagues" who feels reminded by Stadler's social-process-argumentation of the terminology of totalitarian bureaucratic states:

An artist reflects the social reality as much or as little as everyone else. He creates a piece of art, just like an engineer creates a technical device, a chef cooks a soup or a hairdresser cut the hair. [...] The quoted argument, however, would also justify stealing a flat screen in a shop, since its design only represents a reflection of social reality. Whether this reflection is manifested in glass and plastic, or the sound of a melody or a clear soup, a qualitative difference does not exist.

[...] Vetter [and Stadler] - you may not believe it - even refer to the social obligation of property in order to negate the author's rights to their works. This is like I would be allowed to live in my neighbor's house, just because Art. 14 GG requires a social obligation of property. In fact it does so, but not to give it away.

Instead, the allegedly free internet shall now represent a contribution to culture. However, the internet is about as free as the GDR was democratic. Or does the term freedom lately refer to the internet monopolies of Facebook or Google?

But what does the German Piraty Party actually say to all this? Their latest manifesto demands in the section "copyright and non-commercial reproduction" the following:

[...] The present legal framework for copyrights limits the potential of the current development, since it is based on an outdated concept of so-called “intellectual property” which opposes the goal of a knowledge and information society.

Technical systems which obstruct or prevent the reproduction of creative products ("copy protection, DRM, etc.) create artificial scarcity in order to turn a public good into a private one for economic purposes. The creation of artificial scarcity purely for economic purposes seems immoral to us, therefore we reject these technologies. [...]

[...] the reproduction of digital products cannot be restricted in a technically sensible manner and the widespread enforcement of prohibitions in the private sphere has obviously failed [...]. We are convinced that non-commercial reproduction and use of creative products should be seen as a natural process, which does not affect the interests of most originators in a negative manner. [...]. We therefore demand that copying, providing access to, storing and using creative products for non-commercial purposes must not just be legalized, but actively promoted to improve the public availability of information, knowledge and culture, because this is a prerequisite for the social, technological and economic development of our society.

Please judge for yourself, but according to my understanding, this means that once an author publishes his work on the internet, everyone should have the right to copy, use, and redistribute it for non-commercial use. This is exactly the "for free culture" the author's appeal criticises.

It is a fact that something that costs nothing is not worth anything. In this sense, the pirate movement, their anti-copyright apologists, and their voters and supporters in fact demand to fight intellectual property by intellectual dispossession of authors and artists (and later maybe also of patent owners).

Maybe it is true what some political observers notice: There has never been such a high level of public contempt of artists in (West-) Germany after the war.

A Matter of Confidence: The Right of Access to Documents of EU Institutions

2012-05-10T19:48:00.003+02:00

In the latest ksnh::law blog posting titled "EU About To Lock Away Their Documents More Easily Than Ever?" my colleague Axel Horns discusses the poor level of information transparency within the EU legislative process, starting from Article 2 (1) of the Regulation No 1049/2001 of the European Parliament and of the Council of May 30, 2001 reading

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

Clearly, important EU political actors try to create as little publicity as possible by amending current transparency rules.

Prominent examples of the EU's closed-door approach towards legislative and administrative decision-making from the IP field include

The latter aspect was illustrated by Antonio Pizzoli in a comment referring to the following EU documents classified LIMITE, all of which being crucial to the future EU Unified Patent Court:

Draft agreement on the European Union Patent Jurisdiction - compatibility of the draft agreement with the Opinion 1/09 (21.10.2011, pdf)
Draft Agreement on the creation of a Unified Patent Court - Preparation of the Competitiveness Council on 5 December 2011 (01.12.2011, pdf)
Draft Agreement on the creation of a Unified Patent Court - Presidency compromise text (06.12.2011, pdf)

Before this background, it will be very interesting to see what the soon to be expected decision on new EU freedom of information rules will look like.

From a more global standpoint, one thing is crystal clear: The ongoing deep crises of the European Union is not only a monetary and financial crisis but also a crisis of confidence, which is enhanced by the EU's ongoing attempts to as muchg as possible exclude its citizens and the informed public from the decision-making process.

While many European citizens might not be overly interested in EU legislation and thus just don't care about the above-sketched problem, especially those benevolent, multi-lingual, politically and culturally skilled and high-qualified people are discouraged by the above practise that are urgently needed by the EU as multipliers to increase the acceptance, respect, and confidence among its citizens.

(Photo: (C) 2009 by glsims99 via Flickr and licensed under the terms of a CC license)

Triple 'P' this Month on the ksnh::law IP blog: EU Patent, Pirates, Paperless Office

2012-04-30T22:12:00.002+02:00

This month (April 2012) our ksnh::law blog has reported on basically three very different topics that, at the first glance, do not appear to have much in common:

while upon a closer look some links become evident between the Unitary Patent and the IP sceptical and computer affine Piratenpartei that fears so called 'software patents' like the devil avoids holy water.

As to the EU Patent, The German industry association Bundesverband der Deutschen Industrie e.V. (BDI) has held a conference titled Tag des geistigen Eigentums – Geistiges Eigentum verpflichtet (Intellectual Property Day - Property entails obligations) on which executive and professional representatives expressed their expectations that a conciliation on this matter can and will be reached until next meeting of the EU Competitiveness Council, while the FFII and representatives of the German Piratenpartei expressed their concerns that the Unitary Patent might turn out to facilitate legal acceptance of so called 'software patents'.

Meanwhile, Baroness Wilcox stressed the UK Government's opposition against bifurcation and its strong demand to see the central division of the Unified Patent Court be seated in London.

Clearly, no significant moves will be made prior the second round of the French presidential elections on May 06, 2012. Angela Merkel still supports Mr Sarkozy, while the relationship between Ms Merkel and Mr Hollande is continuing to deteriorate rapidly in particular as Mr Hollande appears to insist on re-negotiating the EU fiscal treaty. Should Mr Sarkozy get re-elected, he might see himself being politically deeply in Ms Merkel’s debt, a situation which might enhance Germany’s chances to get the seat of the Central Division provided that all other issues can be sorted out.

But what happens if Mr Hollande turns out to become the next President of France? It is known that in general Mr Hollande is more open to positions of critics of the current system of Intellectual Property than Sarkozy ever was. But clearly, arguing in an election campaign is one thing, and ruling a State under the limitations imposed by reason of state is quite another.

(Photo 2011 by KitAy via Flickr under a CC license)

IP Sceptical Pirate Party on the Rise in Germany

2012-04-30T08:40:00.000+02:00

The German Pirate Party (“Piratenpartei”) is well known amongst IP professionals for their sceptic stance on the current state of copyright and patent law. On the ksnh::law blog we recently issued two postings titled "Pirate Party Winning Seats In Parliament Of Saarland, Germany" and "Political Turmoil in Germany: Piratenpartei" sketching the recent political developments of the political arm of the pirate movement in Germany, including two electoral victories in the German states of Berlin and Saarland:

On September 18, 2011, the Piratenpartei won 9% of the votes in the Berlin state elections and got their first parliamentary group in a local state Parliament in Germany; (see here);
On March 25, 2012, the Piraten partei won 7.4% of the votes in the Saarland state elections, well above the 5% quorum, giving them seats in the new legislative period (see press coverage), way ahead of the Liberal Democrats that reached only 1.25% of the votes.

But there may be more victories to come:

In the German State of Schleswig-Holstein, state electtions are due to be held on May 06, 2012. Recent polls show up to 9% and even 11% to be expected for the Piratenpartei (date 30 April 2012). The quorum for gaining seats will be 5%.
In the German State of North-Rhine-Westphalia, having the largest population among Germany states and being an important industrialc center of the country, state elections are to be held on May 13, 2012. Recent polls also show results around 8% to be expected for the Piratenpartei (adate 30 April 2012). The quorum for gaining seats will be 5%.
In September 2013, General Elections for the lower chamber of German Parliament (Bundestag) fall due. Recent polls show results between 9% and 11% to be expected for the Piratenpartei (date 30 April 2012). The quorum for gaining seats will be 5%.

Before this background the nervousness amongst other political parties, economists and the legal professions is rising: "Political Turmoil in Germany: Piratenpartei".

Will Unified Patent Court be Trifucated?

2012-03-26T10:46:00.000+02:00

In this article of 22 March 2012 Partners of London based law firm Bristows report on a new compromise approach by the Danish EU Presidency to resolve the current deadlock in the question as to where the important Central Division of the future EU Unified Patent Court should be located (see earlier postings here, here, or here). Currently, the most promising candidates to host the Central Division are Paris, London and Munich:

Intriguingly, the Danes have floated a possible sharing compromise, that is to say that there could be three Central Divisions, or perhaps more accurately, a co-located Central Division.

Unfortunately, the article does not cite any source for this interesting information. So if anybody happens to know more about it, please let me know.

The article goes on the speculate on possible case allocation schemes of such a trifucated Central Division:

For example, would each branch of the Central Division be able to hear all revocation cases, and hence operate in all three languages? Or would the London branch deal with revocation cases for English language cases, Paris with French ones, and Munich with German ones? And if not, how would the Registry, where all cases must be begun (apparently promised to Luxembourg), distribute business? Would the parties have a say? Would it be done by chance with cases going to each branch of the Central Division on a Buggins' turn basis? Would we see a German language patent being litigated between two German companies in German, in Paris or London because the German division hearing infringement had decided to bifurcate its case and it was not Munich's turn to be allocated a validity case?

What appears clear is that even if due to the French Presidential Elections official steps are highly unlikely until the 30 May Competitiveness Council meeting , back-room negotionations and lobbying of stakeholders will continue unabated.

The new 'Handbook of Quality Procedures' explains the Complaints System at the EPO (Update)

2012-03-22T22:40:00.040+01:00

The new "Handbook of quality procedures before the EPO" (pdf, 780 KB) adresses

the practice of applicants and representatives
the practice of examiners, in particular how the examiner should best carry out examination so as to reach a decision in a reasonable time while dealing openly with parties to the proceedings;
the practice of formalities officers, particularly focusing on interaction between formalities officers and applicants; and
how complaints are dealt with at the EPO.

Even though it is not binding either on the EPO or on users and their representatives, it gives some interesting insight into the workflow the EPO wished applicants and representatives to follow (cf. also here).

One of the more interesting issues for practitioners can be found in Chapter 8, "Complaints", pages 49 and 50, sketching the following:

The importance of making a complaint. Anyone dissatisfied with the services of the EPO, whether or not he is a party to the proceedings in question, is encouraged to make his dissatisfaction known to the Office. The EPO takes feedback seriously and strives to use it as a basis for continuous improvement. There will be no negative consequences for the complainant merely because he files a complaint.

The EPO will investigate all complaints. [...] Once a final decision has been taken or an application is withdrawn, it is too late: complaints are best made as early as possible.

Procedure for making a complaint. Complaints can be submitted to the EPO by any convenient means. Written complaints are easiest to deal with, especially if sent by e-mail direct to Directorate Quality Management Support [..] at dqms@epo.org. If a complaint is contained in a response filed in connection with a particular application, the response must be filed by the official means, preferably online. In this case, the complaint will be investigated more quickly if a copy of the response is sent by e-mail to DQMS.

[...]

How the EPO handles complaints. All complaints are investigated and followed up internally within the EPO.

Directorate Quality Management Support (DQMS) is responsible for dealing with complaints. DQMS is a department outside the operational line. It looks into the case, together with the head of the department responsible for the case in question, to establish what has happened, whether the complaint is justified, and whether followup action such as a change in procedure is needed. It reports annually to the President of the EPO on complaints received.

Response time. DQMS aims to reply to complaints within 30 days. In the rare cases where it cannot manage this (e.g. because of extensive consultations), the complainant will be kept informed.

Limitations. The treatment of complaints takes place outside the scope of the normal patent procedure. Although DQMS investigates all complaints, it has no authority to influence or review the legal decisions taken by other EPO departments.

DQMS normally provides complainants with feedback on the results of its internal investigation. In a few situations, this may not be possible, for example if a binding decision has already been taken, or if other parties are involved.

In the interests of legal certainty, DQMS can advise other departments to issue corrections or refund fees only if there is a legal basis for them to do so. In particular, the valid payment of a fee has a legal effect, so a refund is usually not possible unless a mistake has been made.

Making a complaint is not a substitute for available legal remedies. if the procedure provides for means of legal redress in a given situation, the complainant may consider following these in parallel with complaining to DQMS. A complaint related to a specific application will be added to the electronic file. If it contains material which needs to be taken into account in the procedure, it will be placed in the public part of the file.

Update (23.03.2012): Even though the new Handbook has been officially published just now (1st edition, March 2012), it has been published on the EPO website for only one or two days already in February 2012 and then withdrawn.

Apparently, the EPO wasn't convinced of the February version of the Handbook. The only differences between the two versions though lie in the Foreword/Introduction part of the book. While passages of the February version relating to the aim of the book and the duties of the EPO and representatives

[...] The aim of this document is to provide further non-prescriptive guidance and information on how proceedings between the EPO and its users can be conducted in ways conducive to a high-quality process. [...]

[...]

The EPO has a duty to process and examine European patent applications. It is to its own benefit and to that of users and third parties that it conducts the granting procedure as efficiently as possible, while maintaining its long-standing commitment to quality.

Representatives have a duty to serve the interests of their clients or principals as best they can while complying with the European Patent Convention (EPC) and professional standards. Users involved in the patenting process at the EPO vary from individual users through small and medium-sized enterprises to multinational companies, all of them subject to different financial constraints and IP policies. They also operate in a variety of technological areas which have different time frames and exploitation potential. In proceedings before the EPO, both users and the EPO can adopt many different procedures while complying with the EPC. This document provides indications of quality-building practices which reflect those already applied in the majority of cases by EPO staff and representatives alike. EPO. This document indicates some of the procedural consequences of taking such different courses.

do not anymore show up in the March version, the cooperation of EPO, epi, and BusinessEurope is now addressed more euphorically ("hallmark") and the aim/intention of the Handbook is expressed differently and slightly broadened:

Its intention is to help to increase the quality of incoming applications, communications from examiners and submissions from parties, as well as to provide for an efficient prosecution. It may also serve as an orientation for attorneys who have less experience with the procedures at the European Patent Office and for candidates preparing for the European Qualifying Examination.

Theses amendments do not appear to be the result of highly political back room issues and surely do not qualify conspiracy theories at all. For emphasising the cooperative approach of the project it certainly was a good idea to cancel the two paragraphs on the duties, especially since the duties of the representatives were four times longer that those of the EPO.

(photo 2009 by Life As Art via Flickr under a CC license)

After opposing ACTA, will Poland also turn against EU Unitary Patent?

2012-03-21T09:15:00.001+01:00

Polish MPs protesting against ACTA

In the European Union, the brave citizens of Poland were among the first to stand up against ACTA when their government announced on 19 January 2012 to ratify the controversial agreement. The public protests began on 26 January 2012 and on the same day some politicians expressed their protest in Parliament by wearing Guy Fawkes masks during the debate.

In the end, Donald Tusk, Prime Minister of Poland, abandoned ratification on 17 February 2012 and declared that his earlier support for ACTA was a mistake. He even sent a letter to fellow leaders in the EU urging them to reject ACTA as well.

Now it appears that Polish professionals consider the legal instruments against alleged infringers as provided by the Unitary Patent Regulation similar, or even more dangerous for entrepreneurs and SMEs than the regulations of ACTA. Also it is again critisised that the translation arrangement would disadvantage especially smaller Polish entities.

In an article on the Kluwer blog we now learn from Krystyna Szczepanowsk that another opposition is growing in her country, this time against the Unitary Patent Regulation, despit the fact that the Polish EU Council Presidency put a lot of effort into the project in the second half of 2011. She observerd the following:

In the light of the recent strong criticism of the unitary patent system in Poland, one could ask whether the Polish government may subsequently opt for “compromise” agreements, or whether it will join with the positions presented by Spain and Italy.
Many interest groups in Poland have recently criticized the proposed regulations on unitary patent protection and have called on the government to withdraw its support for them. This initiative has officially been taken by members of the Polish Chamber of Patent Attorneys, but it seems that it has also found many enthusiasts among economists, scholars and politicians, including members of the Polish Parliamentary Commission of Innovation and New Technologies.

The Polish Chamber of Patent Attorneys claims that the European regulations favour companies from the United States, Asia and large European corporations. Therefore, given the fact that Polish industry is still developing, adopting a unitary patent system could kill off innovation in Poland. Some scholars claim that according to the proposed regulations, the number of patents valid in Poland would increase by an additional 60,000 annually. Since these patents would be written either in English, French or German, Polish entrepreneurs would be responsible for their translation in order to check whether they are not committing any infringement.

Ms Szczepanowsk concludes that

one could speculate that due to the negative buzz created by the controversy surrounding the ACTA-Agreement, the Polish government may, in the future, withdraw its support for the concept of a European unitary patent system, just as it did with the ACTA-Agreement in response to massive public demonstrations.

The current reservation against the translation agreement in Poland does not fall from the sky but is consistent with the Polish opposition against the adoption of a language regime according to Art. 14 EPC (DE, EN, FR) when the country was among the most reluctant countries together with Spain and Italy in the days before the decisive Council meeting of 10 December 2010. The latter two countries finally prevented a pan-European solution which, in turn, was the reason for the establishing an enhanced cooperation approach.

Poland's attitude towards IP rights might anyway be rather reserved, as could be learned from the country's opposition against the highly controversial Software Patents Directive in 2004.

Federal Government continues on all Levels to advocate Munich as Seat of the Central Division

2012-03-20T08:30:00.019+01:00

As recently reported on the ksnh::law blog in an article titled "German Federal Government Strongly Advocates Munich as Seat of Central Divison of EU Unified Patent Court" (Deutsche Fassung hier), a written parliamentary question in the German Parliament/Bundestag by MP Doris Barnett (Social Democrats) gave the Federal Government the opportunity to take a public position on the efforts undertaken to bring the seat of the Central Division of a future Unified Patent Court to Germany (question 50 of Drucksache 17/8723; in German). Dr Max Stadler, Parliamentary State Secretary to the Federal Minister of Justice under Minster Sabine Leutheusser-Schnarrenberger (both Liberals), answered the question as follows (cf. Plenarprotokoll 17/161, page 1919 onwards; in German):

[...] The Federal Government strongly advocates in the negotiations that the seat of the Central Division will be in Munich. As the European capital city of patents Munich is best suited for the headquarters of the Patent Court. The European Patent Office, which will grant EU patents, has its headquarters here. The required technical skills of judges and attorneys/lawyers are available here in particular. France has also applied for the seat (Paris). The overall agreement largely depends on the seat of the Central Division. The Federal Government will continue on all levels to advocate Munich as the seat of the Central Division.

The decentralized structure of the Court provides that patent infringement cases are brought before Local or Regional Division residing in the Member States. It can be taken for granted that the Local Divisions located in Germany will have a significant proportion of the total volume of litigations.

The German version of this posting can be found on ksnh::jur under the headline "Bundesregierung kämpft für München als Sitz der Zentralabteilung der EU-Patentgerichtsbarkeit".

While the German government claimed the seat of a European Patent Court already in the times of the "Community Patent Convention", London wa put on the agenda only upon intervention of the UK legal profession and Paris was considered a compromise location to prevent a deadlock. However, as has been summarised recently “few other EU countries are happy with a Munich seat because the city is already the home to EPO“, “Britain lacks goodwill and allies“, and “French inflexibility has been damaging“ (see here).

As analysed in the article "Munich or London? The new EU Patent System will now have to be saved by Angela Merkel and David Cameron personally", the Germany government's chances to succeed in this game depend on political dynamics, the current distribution of political (and economical) power within the Union, and Ms Merkel's personal determination to this issue - which factors might not necessarily argue against a German seat. In the end, however, this issue may well be decided by the traditional EU horse trading negotiation strategy, as the seat issue may be considered a perfect negotiable quantity in more important political projects, such as controversal measures suggested to overcome the historic financial and debt crisis.

Even though there were some speculations that an agreement may be achieved at the informal financial Council meeting on 30 January 2012 in Brussels (see tweets here and here), it wasn’t a big surprise that the Heads of Government have had enought to do with stimulating growth in Europe and finalizing/promoting the ESM and fiscal compact. As to the patent issues, an official statement at least clarified that

The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package.

German Patent Law Capacities Divided Over Articles 6 to 9 of the Unitary Patnet Regulation

2012-03-19T09:00:00.003+01:00

In an article titled "In Defense of Articles 6 to 9 of the Unitary Patent Regulation" on the ksnh::law blog we discuss the diverding expert opinions of renown law Professors Rudolf Krasser (Max Planck Institute for Intellectual Property) and Winfried Tilmann (Hogan Lovells LLP and Member of the Rules of Procedure Committee according to Article 22 UPC Agreement) concerning the attractiveness of the Unitary Patent and the question of whether or not Articles 6 to 8/9 should better be removed from in the Unitary Patent Regulation.

Even though the Unitary Patent Regulation has already received green light from the EU Parliament’s legal committee (JURI) in late December (see press release) and the EU Council already began to linguistically finalise the Regulation text in early January, this highly political issue will presumably not disappear from the agenda as long as the Unified Patent Court Agreement is stuck over the question of which EU member state will receive the Central Division of the EU Unified Patent Court (see e.g. here, here, and here).

While Prof. Tilmann (opinion here) defends the current version of the Unitary Patent Regulation, Prof Krasser (opinion here) articulates the concerns of a strong and illustrious ‘opposition movement’ of legal professionals and their associations (e.g. EPLAW and Jochen Pagenberg, European Patent Judges and Sir Robin Jacob, Professor Krasser, CIPA), industry representatives (e.g. ICC, IP Federation), and a few politicians (e.g. JURI member Cecilia Wikström (SE, ALDE) [1, 2, 3] and UK IP Minister Baroness Wilcox), all of which demanding Articles 6 to 8/9 to be removed from the Regulation to prevent substantive patent law from becoming subject to review by the European Court of Justice via referral questions according to Article 267 TFEU.

The EU Commission, the Smartphone Combatants, and their Interplay on SEP and FRAND

2012-02-24T23:51:00.000+01:00

On the ksnh::law blog we just issued a series of two postings titled "EU Commission’s Approach to Standard-essential Patents and FRAND sharpened by ‘Smartphone War’" to explain the political attitude and legal initiatives of the EU Commission (part 1) and the way the various smartphone combatants follow their not at all altruistic tactics in this regard (part 2).

In these articles we look at how the various players of the so called 'smartphone war' trigger the EU Commission's antitrust policy aiming at keeping technological markets defined by standards freely accessible by FRAND commitments of proprietors of standard-essential patents. On the other hand side, the bitterly competing tech giants involved are very tactically trying to utilize the EU Commission's ability and willingness (see e.g. this speech of Commissioner Almunia) to impose severe penalties on abusers of standard-essential patents to their own advantage.

For example, the EU Commission only recently announced to open formal investigations against Samsung for disturbing the mobile device market by using its 3G/UMTS standard-essential patents contrary to their FRAND commitment vis-a-vis ETSI. Motorola, in turn, might be threatened with the same fate if the EU Commission will comprehend the complaints of rivals Apple and Microsoft (see here and here) against the ICT firm with the large patent portfolio that will now be taken over by Google after the EU Commission's approval.

For our German readers, the following two postings on our German language blog ksnh::jur cover more or less the same content, albeit differently compiled:

Unitary Patent: EU Authorities increasingly frustrated while some hope for the Danes and others prefer Fisheries

2012-02-15T09:06:00.001+01:00

One of the hot topics we closely follow on ksnh::law is the development of the Unitary Patent (cf. EU Regulation) and the Unified Patent Court System (cf. Draft UPC Agreement) in Europe and the related discussion among politicians, experts, practitioners and system users.

Only recently we summarised the current situation in two larger articles:

Basically, what happened is that the speed and rush, as critisised by some observers (e.g. FICPI, CIPA) had been taken out of the legislative process, as an official statement issued after an informal financial EU Council meeting on 30 Januars 2012 clarified that

The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package.

That is, the hopes appear now to be placed in the mediative abilities of the Danish EU Presidency under Prime Minister Helle Thorning-Schmidt as to convince Angela Merkel and David Cameron (and, should he remain in power, Nicolas Sarcozy) to save the project by a more pragmatic attitudes at the top flight of EU executives.

In line with this, it turned out in mid January that the EU Parliaments's Legal Affair's Committee (JURI)
JURI has decided to postpone the EU Parliament’s long-standing first plenary session on the EU Patent Package (cf. minutes of the JURI meeting of 19/20 Dec 2011, PE478.655v01-00):

The Chair [i.e. Mr. Klaus-Heiner Lehne (DE, EPP), Rapporteur for UPCA] stated that, whilst the committee was able to vote on the three patent procedures, there would be no vote in plenary until an agreement had been reached on a seat for the relevant EU body.

In fact, instead of any debates on Unitary Patent Protection, a Fisheries debate was held on 14 February 2012. That might by a meed much.

For a more complete picture on what is going on in this particular field of EU politics, you may refer to the two above-referenced articles [1, 2] which, inter alia, relate to the following issues:

the political story so far and the efforts of stakeholders
the EPO's attitude towards patenting costs
the seat of the Central Division of the UPC
the present political situation within the European Union
the role of Angela Merkel and David Cameron
Munich versus London
the hearings of the Scrutiny Committee of the UK House of Commons
JURI's recommendations for the postponed plenary voting

IP Enforcement Efforts in the European Union

2012-02-14T22:58:00.000+01:00

Now as the debate on the Anti-Counterfeiting Trade Agreement (ACTA) is gaining momentum, as shows this Google Trends graph, the ksnh::law blog is trying to put a stronger focus on the enforcement efforts within the European Union. We began working on that topic with the following postings during recent weeks and months:

ACTA. (cf. ksnh::law [1], [2], [3]) While ACTA requires in Art. 2 § 1 that

Each Party [i.e. Acta member state] shall give effect to the provisions of this Agreement. A Party may implement in its law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. [...]

it does not come as a surprise that in some of the ACTA member states some (if not many) of the provided provisions are already in force, e.g. by implemented secondary EU law regarding IP enforcement:

Council Regulation (EC) No 1383/2003 of 22 July 2003 on customs action against goods suspected of infringing certain IP rights and the measures to be taken against such goods (to be replaced by a new, stricter Regulation soon; see below).
Directive 2004/48/EC of 29 April 2004 on the enforcement of IP rights (IPRED1).

Many of these existing provisions have worked for many years now without causing much trouble, so that the question arises as to what is the desired effect of ACTA. These are our observations:

Forge something like a ‘coalition of the willing’ that desires to create some sort of institutionalised lock-in setting which in future prevents that certain standards agreed upon are ever undercut by reforms of national law weakening the system of IP protection;
ACTA will create a third pillar of international IP enforcement institutions with own funding and bureaucratic structures, independent of and easier to control as WIPO and WTO / TRIPS.
Unlike WIPO and WTO, ACTA proponents chose to conduct initial negotiations in secrecy without even disclosing the initial text drafts, in order to prevent interventions from civil society that might disturb the desired Enforcement of Intellectual Property Rights in the Digital Environment, by which a legal environment would be set up where businesses relying on the Internet, in particular intermediaries, are subjected to a draconian regime of forced co-operation with a broad spectrum of enforcement efforts.

ACTA in Germany. As recently reported in German media (e.g. here or here), the German Government maintains its support for the international copyright agreement despite the recent mass protests in major Germany cities since IP rights need to be protected and enforced also in the Internet, as recently explained by Government spokesman Steffen Seibert on twitter. Besides that, many of the objections raised on ACTA in the Internet were not applicable, since e.g. ACTA neither requires net barriers nor is it a secret agreement, he added. Mr Seibert also explained that preliminary versions of the agreement have been made available on the Internet as early as 2010, while the final agreement as approved by the Federal Government is online since December 2011 (pdf).

ACTA falls under the responsibility of the Federal Ministry of Justice under Sabine Leutheusser-Schnarrenberger (Liberal Democrats; FDP). While she initially gave instructions to sign the agreement, it came as a surprise that she expressed concerns and even withdrew her signing instruction only recently. This change of mind was explained by the fact that ACT is a "mixed multi-lateral agreement", which is why the Federal Ministry of Justice did not take an active part in the negotiations but only had an observer status. Besides this rather "constructed" argument, a Ministry spokesman could not give more convincing reasons for the Minister's turn-around.

The center right CDU party of Federal Chancellor Angela Merkel, being the larger coalition partner of the Leutheuser-Schnarrenberger's FDP in the German Government, however, left no doubt that they consider the agreement still appropriate, which is why the Minister of Justice's change of mind was noted "with surprise". For example, Wolfgang Bosbach, prominent CDU spokesman of internal affairs, defends the ACTA agreement by arguing that what is forbidden in real life - i.e. copying other's intellectual property - cannot be allowed in virtual life.

Revised IP Enforcement Directive. (cf. ksnh::law [1]) A Document obviously authentic laying out a Roadmap Proposal for a revision of the IP Enforcement Directive (Directive 2004/48/EC) says:

[Some] initial assessment as well as a public consultation early in 2011 have revealed that certain provisions in the Directive may not be sufficiently clear and that this has lead to diverging interpretations in national courts. In addition, the Directive seems not to be sufficient to effectively tackle IPR infringements on the Internet. A number of other issues have been raised, that could be hampering a proper enforcement of intellectual property rights in particular for SMEs, such as the use of provisional and precautionary measures, procedures to gather and preserve evidence (problem of relation between the right of information and protection of privacy), the meaning of various corrective measures, including the costs of destruction, the calculation of damages.

Furthermore, the roadmap document argues:

The Directive has not been designed to deal with the challenges posed by the internet. The internet and digital technologies have added a new dimension to enforcement of intellectual property rights. On the one hand, the internet has allowed creators, inventors and their commercial partners to find new ways to market their products, but on the other hand it has also opened the door to new forms of infringements, some of which have proved difficult to combat. [...] As a result, there is a need to modernize the Directive to make it a suitable legal tool for the infringements committed on the internet.

OHIM. (cf. ksnh::law [1] and [2]) Also recent measures to transform OHIM anto an IP enforcement think-tank appear to be politically related to an expectation that ACTA will enter into force within the EU, as Art. 28,31, 33 to 35 of ACTA aim at entrusting OHIM with certain tasks related to the protection of IP rights, including establishing a European Observatory on Counterfeiting and Piracy (COM(2011) 288 final).

Future Role of EU Customs. (cf. ksnh::law [1], [2]) The first posting reports on Document 10880/11 (COM(2011) 285 final) covering a proposal for a new EU regulation replacing Council Regulation (EC) No 1383/2003 that intensifies the legal framework for enforcement of intellectual property rights, e.g. with respect to "introducing procedures enabling customs, under certain conditions, to have goods abandoned for destruction without having to undergo formal and costly legal proceedings", the latter sounding somehow frightening. This approach is justified by Document 10880/1 ADD 1 conveying a Commission Staff Working Paper, a summary of which is available with Document 10880/11 ADD 2, while details concerning a public consultation held in 2010 were published with Document 10880/11 ADD 3.

The responsible Rapporteur, Jürgen Creutzmann (Liberal Democrats) has published his Draft Report on the proposed EU Regulation on 13 December 2011, suggesting, inter alia, that a traveller exemption clause in the Commission Proposal should be deleted, since the exemption of travellers’ luggage is inconsistent because IPR can only be enforced when the goods are of commercial nature/used in the course of trade. This and other suggestions of Mr Creutzmann apparently are highly controversial (Google translation).

Document 5145/12, which originally was classified LIMITE but was obtained under a request based on Regulation (EC) No 1049/2001, covers some related notes of the General Secretariat of the EU Council and informs the Delegates of the Working party on Customs Union under the Danish EU Presidency on the thematic topics to be further discussed, while the Role of customs and responsibilities of the right-holders and Transit are commented in some detail. Regarding the Role of Customs, however, the question arises as to whether or not Customs Officials indeed are qualified to take an active role in countering IPR infringements and safeguard the legitimate interests and rights of the concerned persons if it comes to more complex and entangled situations, especially when patent rights are involved.

(photo 2009 by eÂ³Â°Â°Â° via Flickr under a CC license)

The European Patent Office and its Approach to 'Software Patents' including some comparative Comments on the German PTO's Practice

2012-01-24T22:46:00.000+01:00

On the ksnh::law blog we take exceptional care about the discussion on and legal development of protection of computer-implemented inventions, aka 'software patents'.

With our latest posting we completed a small series of three articles on the respective legal foundations of and the examining practise in this field of European and German patent law.

EPO Examining Practice:
Patents for Software? How the EPO Examines Software Inventions and what Lessons can be Learned.
This article provides an in-depth analysis of the extended problem/solution approach, the most important formal examining scheme for software inventions as developed by the Boards of Appeal around the turn of the century. The specific characteristics of that approach is that non-technical features of a claim can be considered as prior art upon examining inventive step – to the detriment of applicants (!). The second headnote of the Comvik decision T 641/00 puts this important finding like that:

II. Although the technical problem to be solved should not be formulated to contain pointers to the solution or partially anticipate it, merely because some feature appears in the claim does not automatically exclude it from appearing in the formulation of the problem. In particular where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met.

Consequently, applicants and especially their patent attorneys should make sure that the specification and the claims do not at all comprise non-technical aspects or or only to the required extent, in order to prevent that proper and limiting technical features are “devaluated”.

EPO Legal Foundations (Boards of Appeal Case Law):
EPO Case Law on Patentability of Software Inventions From the 80ies Until Now.
The legal development in this field did not always go linearly and some approaches were abandoned or modified throughout the years. However, since the G 3/08 opinion basically affirmed the status quo, i.e. the pragmatic problem-solution approach as sketched in T 641/00 (COMVIK) and T 258/03 (Hitachi), case law has reached a rather stable situation, providing legal certainty for applicants of software inventions. Thus, in this particular question, Europe appears to be one step ahead of the US and other important patent jurisdictions in the world.

German Practice and Case Law:
German Federal Court of Justice Confirms New German Approach To Software Patent Examination
In the past three years we were handed a number of quite interesting decisions from the German Federal Court of Justice, especially

X ZB 22/07 ("Control of Examination Modalities") of 20 January 2009 (comments)
Xa ZR 4/07 ("glass bottle analysis system") of 4 February 2010 (comments)
Xa ZB 20/08 ("Dynamic Document Generation") of 22 April 22 2010 (comments)
X ZR 47/07 ("Reproduction of Topographic Information”) of 26 October 2010 (comments)
X ZR 121/09 ("Web Page Display") of 24 February 2011.

By the latter decision, the German two-stage approach to examination patent-eligibility of software-related inventions can be considered established.

Even though the Germany approach resembles the EPO's approach, it is not identical with it. The difference between the approaches might be illustrated by the fact that a pure business method implemented on a conventional computer or computer network would in Germany be excluded as a “computer program as such” without even considering prior art, while the EPO would rejected this method for lack of inventive step since its differences over prior art only involve non-technical features.

In Germany, applicants of software inventions will be on the safe side if the invention is claimed within an embedded system framework, i.e. as a method controlling a technical apparatus or collecting, evaluating and processing (technical) data by means of a technical apparatus.

The recent development of German case law is to be considered positive for applicants of software inventions, as it overcomes the earlier investigation of the individual case and thus creates legal certainty due to an easier-to-understand and thus easier-to-adopt examination systematics.

The EU Unitary Patent at the Beginning of 2012 - News from Brussels, London, and Copenhagen

2012-01-16T08:52:00.001+01:00

The first two articles on our ksnh::law blog in 2012 have drawn a promising but fragile picture on the condition of the Unitary Patent and Unified Patent Court in the beginning of 2012.

It certainly is a sign of progress (although some would say in the wrong direction) that the Secretariat of the EU Council is about to finalise the Regulation for implementing the Unitary Patent (see Document CM 1068/12). Apparently, the dice is cast with respect to the Unitary Patent and, thus, with respect to the highly controversial question as to whether or not Articles 6 to 8 (effects of patents) should remain in the proposed Regulation so that substantive patent law will be subject to review by the Court of Justice of the European Union in future.

As opposed to the opinion of some players (and some bloggers) but in line with others (see e.g. here, sec 1.2.2), it is the position of the ksnh::law blogging team that,

when having a look to the overall structures of patent law, it appears to be completely coherent to include these provisions just into the Regulation (which replaces national patent law comprising similar statutory clauses).

But, as we all know, further problems need to be solved in case of the Agreement on the Unitary Patent Court, especially the "things that are not so difficult", as addressed by EU Commission President Barroso below, namely the decision as to where the important Central Division of the Unified Patent Court will be situated. Candidate cities with good prospect are reported to be London, Paris, and Munich. It is expected that this stuck issue will have to be decided on the level of the heads of government by lateral talks between Prime Minister David Cameron, President Nicolas Sarcozy and Federal Chancellor Angela Merkel on the margins of some EU meeting.

In another article titled "European Scrutiny Committee of the UK House of Commons On Unitary Patent" we reported on concerns of the 'UK Scrutiny Committee' that the new unitary patent system could disadvantage British small businesses. Since the conclusions of the Committee were not very favourable, questions may arise as to whether or not such national concerns could endanger the entire project of unitary patent protection in Europe when the UK Government and Prime Minister David Cameron listen to such voices. And if so, would David Cameron really dare to bury the second important EU project with in a few months.

JM Baroso and H Thorning-Schmidt meet on 12 January 2012 in Copenhagen

Officially, the new year began for the European patent system project with the Danish administration under social-democrat Prime Minister Helle Thorning-Schmidt taking over the Presidency of the EU Council from Poland and making clear that the EU Patent Package (Directive on Unitary Patent; Agreement on Unified Patent Court) is one of the (many) key issues to be resolved in the first half of 2012 (see Program of Danish Presidency):

Special emphasis will be on the directives on [...] the common European Patent system [...].

Come what may, Ms Thorning-Schmidt will surely not be able to count on euro-sceptical opposition parties Dansk Folkeparti (right-wing populists Danish People's Party) and Enhedslisten (communist Unity List party), which in the meantime demand a national referendum on whether Denmark should join the Unified Patent Court system, since its establishment would transfer national sovereignty in the field of patent jurisdiction to the European Union (see here).

Despite all those problems, EU Commission President José Manuel Barroso took an optimistic outlook on the Danish presidency on the occasion of a meeting with Ms Thorning-Schmidt on 12 January (press release):

Frankly we are almost there; there are now some divisions between France, Germany and Britain on things that are not so difficult. We can finalise the Community patent that we have been discussing for 30 years so it is about time to come to a solution and I know that Denmark will put its influence to find a solution.

Commissioner Barnier Considers Seat of Central Division and Office Fees Main ObstacIes to Agreement on EU Patent Package

2011-12-28T00:27:00.000+01:00

Michel Barnier getting increasingly impatient with EU Patent system

In an article dated December 26, 2011 (see tweet), french daily Le Figaro reports on the increasing impatience of Michel Barnier, EU Commissioner for Internal Market and Services, with the (lack of) progress in the stalled EU Patent project (covering the Unitary Patent and a related Unified Patent Court) and gives some insight into the state of the negotiations.

For those of us who prefer English over French, this is what the article essentially says, besides the usual hymns on the promised cost reductions:

"I appeal to Angela Merkel, Nicolas Sarkozy and David Cameron to reach an agreement as to the seat of the [Central Division of the] European Patent Court" he added. In case of dispute proprietors of a European Patent can take legal action before this Court. Three cities are in the running to host it: Munich, London and Paris, whereas Luxembourg may also be interested.

Another issue to be resolved is the amount of the Office fees that applicants will have to pay [for a Unitary patent] and how [50% of] this fees are to be distributed among the Member States [...]. Denmark which assumes the EU Council Presidency as of January 1, 2012 is determined to do everything possible to find an agreement. This issue should be approached in late February at the next Competitiveness Council meeting. [...].

Initialling Ceremony for Unified Patent Court Omitted, Danish Presidency will take Over

2011-12-23T09:46:00.005+01:00

In a posting on ksnh::law titled "EU Patent Package: JURI has Spoken, But What did it Say?" we report on what - presumably - has happened in the JURI meeting on December 20, in which the EU Parliament's Legal Affairs Committee voted on the three separate resolutions/agreements of the so called 'EU Patent Package', i.e.

Enhanced cooperation in the area of the creation of unitary patent protection (JURI/7/05848).
Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (JURI/7/05847).
Jurisdictional system for patent disputes (JURI/7/06168).

As this press release later reported that JURI "backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called 'EU patent package', questions were asked by observers, as to what Regulation and Draft Agreement JURI actually voted on, since the Competitive Council meeting on December 5 failed at least over a dispute between Great Britain and Germany (and maybe also France) as to the question of the seat of the Central Division of the future Unified Patent Court, so that there simply is no ‘EU Patent Package’ that the EU Council agreed on and JURI is satisfied with, due to the issues left unresolved at the December 5th's Competitiveness Council meeting (see earlier ksnh::law posts [1], [2], [3]).

We thus raised the point that the drafts were voted on yesterday are presumably the same that well-mandated JURI rapporteurs (Bernhard Rapkay, Raffaele Baldassarre, Klaus-Heiner Lehne) carried into the back-room negotiations with the Council on December 1 (see press release) in preparation of the December 5 Competitiveness Council metting (see here).

Further to this, well-connected anti-software-patent campaigner @gibus aiming at putting an "EU flag into EPO" - i.e. to prevent that settled EPO case law on patent-eligibility of software-implemented inventions will be applicable to the future Unitary Patent - explained in a comment on our posting

So, what has been voted by JURI on Tuesday, was only what has been agreed with the Council in trilogue. No other amendment has been accepted (including Wikström/EPLAW/Jacob amendments to delete arts 6-9 from the regulation). Even amendements suggested and voted by ITRE committee for opinion have not been incuded. (for eg. ITRE Am. 11 recalling that the “rights conferred by the European patent with unitary effect shall accord with rights conferred by the Treaties and Union law”, which is something the regulation cannot escape) have been rejected.

But at least one thing is clear, the Warsaw initialling ceremony to finalise the text of the Agreement, as announced by the Polish Presidency for December 22 (see here), was quitely omitted and the incomming Danish Presidency will now take over.

As noticed in this tweet under @ksnhlaw, a fact sheet summarising the Priorities of the Danish Presidency announces that

[a] second objective of the Danish Presidency [after economics and finance] will be to continue the development of the single market in order to achieve its full growth potential. [...] The Danish Presidency intends to work to move the twelve key initiatives set out in the Single Market Act forward as far as possible. Special emphasis will be on the directives on public procurement, the standardisation package, revision of the accounting standards, the venture capital proposal the common European Patent system and better enforcement of the posting of workers directive. [...].

JURI votes for EU Patent Package Today - But What Exacly is at Stake? (UPDATE)

2011-12-20T08:25:00.003+01:00

European Parliament, Strasbourg, France, Home of JURI

Today's meeting of the European Parliament's Legal Affairs Committee (JURI) will see the votes on the different parts of the so called EU Patent Package. According to the draft agenda the voting time is set to 10.00 to 12.30 and will cover nine votings among which are

18. Enhanced cooperation in the area of the creation of unitary patent protection, JURI/7/05848, Rapporteur: Bernhard Radkay (S&D), 2011/0093(COD), COM(2011)0215 – C7-0099/2011 (PR – PE472.059v02-00, AM – PE475.775v01-00, CM – PE467.178v01-00, CM – PE467.283v01-00, AD – PE472.085v02-00, AM – PE473.869v01-00)
19. Enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, JURI/7/05847, Rapporteur: Raffaele Baldassarre (PPE), 2011/0094(CNS), COM(2011)0216 – C7-0145/2011 (PR – PE472.334v02-00, AM – PE475.788v01-00)
20. Jurisdictional system for patent disputes, JURI/7/06168, Rapporteur: Klaus-Heiner Lehne (PPE), 2011/2176(INI) (PR – PE472.331v01-00, AM – PE475.785v01-00, AD – PE472.079v02-00, AM – PE473.870v01-00, PA – PE473.880v01-00, AM – PE475.860v01-00).

But what is actually at stake, what exactly are JURI members voting for?

As reported on ksnh::law in yesterday's posting titled "EU Council: Something To Hide? Might Legal Opinion Turn Out To Be A Bombshell?", our request for public access of Document 15856/11 titled "OPINION OF THE LEGAL SERVICE – Draft agreement on the European Union Patent Jurisdiction (doc.13751/11) – compatibility of the draft agreement with the Opinion 1/09" and marked “LIMITE“ has been served by the European Parliament by a heavily redacted version in which the essential portions were deleted since this document contains "legal advice" as protected under Article 4(2) of Regulation (EC) No 1049/2001. It is not far fetched that the blacked out portions relate to the Legal Service's conclusion that compatibility of the Draft Agreement with the Lisbon Treaty and further EU Law might be a problem, just as outlined in likewise confidential but meanwhile published Document 12704/11 conveying a critical Note from the General Secretariat of the EU Council titled "Creating a unified patent litigation system – Note from the Luxembourg delegation".

Two week earlier ksnh::law reported in an article titled "JURI mandates Rapporteurs to Negotiate Unitary Patent with EU Council Behind Closed Doors", that the three JURI Rapporteurs have been equipped on 22 November 2011 with a mandate (see agenda, nos. 33, 34, 35) to negotiate the EU Patent Package with the European Council in back rooms behind closed doors. (see e.g. press release as well as press reports [1] and [2]) to ensure that broad discussions and public comments would not endanger the ambitious time schedule for reaching an agreement. Clearly, such behind-the-doors negotiations are perfect situations for non-elected players to influence the decision making process in their particular interest.

Now that the negotiations between the EU Council and JURI ended on December 5 in confusion, speculations and ongoing criticism especially of the Court Agreement, the current condition and prospect of the EU patent project are increasingly obscure, as are the exact legal regulations JURI is voting on today. This especially holds for the Unified Patent Court Agreement, in which not only the seat of the central division appears to be unresolved but also some substantive legal issues (see here and here).

As today's agenda states the well-known draft documents (Draft Agreement, Proposed Regulation) and JURI pre-negotiation positions (Rapkay: PE472.059v02-00, PE475.775v01-00; Baldassarre: PE472.334v02-00, PE4725.788v01-00; Lehne: PE475.785v01-00, PE472.331v01-00) as if there never were any discussions between JURI and the Competitive Council on that epic topic, observers and stakeholders are totally lost and will be surprised when they one day realise what exactly obtained a 'yes' or 'no' by JURI on 20 December 2011.

If the JURI version comes near to what is presented (leaked?) here, industry and patent professionals may have a Déjà Vu experience in view of the amendments the EU Parliament demanded on the so called Software Patent Directive in 2005.

If such measures are taken by elected members of a democratic parliament, the respective matter must be in great danger or unfortunate for policy makers or both. In any case, this information hiding attitude - please excuse my openness - is a shame for any democratic legislative process, even if it only affects such minor important issues like the European internal market.

UPDATE (20.12.2011): Now as the voting is over, an official EU Parliament press realease annonces that "EU patent gets Legal Affairs Committee green light". The essential statement is:

[...] Legal Affairs Committee MEPs backed a political deal struck last 1 December between Parliament and Council negotiators on the so-called "EU patent package" (unitary patent, language regime and unified patent court). If Parliament as a whole and the Council confirm the deal, a new EU patent will be created. [...]

Spotaneously one would like to ask which version of the EU patent are they exactly talking about?

The "political deal struck last 1 December" apparently refers to the allegedly done deal the Parliament announced on 1 December. However, that "done deal" only refered to the closed door negotiations between the EU Council under the Polish Presidency and JURI (see [1], [2], [3]), which wasn't that "done" as it turned out after the EU Council meeting of 5 December 2011 (see here and here). Sadly but expectedly, neither the voting nor the press statement helped to lift the fog.

(photo 2011 by Anka Pandrea via Flickr under a CC license)

Organisations of Patent Professionals Submit Opinions on Unitary Patent and Unified Patent Court

2011-12-16T12:20:00.000+01:00

After last week's EU Competitiveness Council meeting ended with rather positive news, stakeholders and interest groups increasingly launch attacks on the suggested EU Patent Package (see e.g. here and here). In two recent articles titled

the ksnh::law blog reports on two papers of FICPI [1] and EPLAW [2] commenting on the draft Unitary Patent Regulation and Unified Patent Court Agreement. FICPI and EPLAW are two of the best-known organisations representing the interests of patent professionals and their clients in Europe, the former being more of a patent attorney's organisation while the latter exclusively represents patent lawyers.

As both organisations openly criticise the drafts lying on the table right now and agree to better "go slowly" and to take a few more months to get it, they take rather different positions regarding one essential issue, namely the question of whether or not Articles 6 to 8 (substantive patent law w.r.t. infringement etc.) should remain in the Regulation for a Unified Patent, since leaving the Regulation as it is now would mean that the CJEU will have a say in substantive patent law in future.

While FICPI thinks the following:

[1.2.2] Whereas FICPI cannot see a realistic alternative to a certain involvement of the CJEU also in questions related to infringement cases [...] when a pan-EU harmonisation of patent jurisdiction should be achieved within the EU, FICPI realizes that there could be problems in practice if the effects (and limitations) differ between the UPR and the UPC Agreement.[...]

FICPI therefore strongly recommends that the authorities involved in drafting the final versions of the UPR and the UPC Agreement safeguard the unitary effect of the patents, including any limitations to the patent rights.

[2.9] Certain stakeholders have objected to the involvement of the CJEU in patent matters. [...] However, FICPI also points to the fact that in the legal system of the EU, there is no supranational authority other than the CJEU that could ensure pan-EU harmonisation (by way of referrals under Art. 267 TFEU) in contentious legal matters. [...] If therefore a pan-EU harmonisation of patent jurisdiction is wished, any practical solution thereto would have to involve the CJEU by way of referrals under Art. 267 TFEU. If the necessary Regulations and Agreements are drafted with the intention of keeping away as many potential questions form the CJEU as possible, the quality of these Regulations and Agreements will suffer [...].

FICPI therefore thinks that [...] it should be aimed to make the CJEU a competent final authority also in patent matters and IP matters in general and to provide the CJEU with the means to achieve such goal.

In this regard, FICPI has suggested in the past that the CJEU should include chambers specialised in intellectual property law [...].

EPLAW strongly argues in the opposite direction:

First of all, the question of what constitutes infringement is to be made will not be decided by the new Unified Patent Court which be obliged to refer many questions of interpretation to the European Court of Justice. In other words: the new Unified Patent Court cannot decide on its own the subject matter it is created for – a rather alarming result given the uncertainty, delay and cost that this will create for future litigants, since judges of the European Court Justice have no patent experience. [...]

EU Patent Package Still Under Construction While Italy Joins Unified Patent Court

2011-12-14T12:09:00.002+01:00

Antonio Gaudi's "La Sagrade Familia" - Under Construction Since 1882

After last week's Competitive Council meeting the EU patent deal appeard to be almost done as "only the seat of the Central Division of the Unitary Patent Court needs to be decided" (see tweet of PL Presidency).

But now, one week later, reports on further or additional amendments desired by stakeholders constantly sprout up, as recently reported on ksnh::law in form of comments on the two questions

Further recent postings relates to

"One Of The Lesser Problems Of EU Unitary Patent Project: Relation To Brussels I", and
"Critical Position Paper of International IP Federation FICPI on Unitary Patent and Unified Patent Court", reporting, inter alia, on FICPI's position towards the controversial representation issue. What strikes me is that this FICPI paper was submitted to the EU Commission (not the Council) not until 4 December, its impact thus might be limited.

Despite the atmoshere of an (almost) done deal, it is more than likely that stakeholdes now will use the time remaining until the "showdown" on 19/20 December - as suggested by JURI member Cecilia Wikström in a tweet - to lobby for amendments that have not been considered at last week's Council meeting. Further to that, the quickly changing political landscape may also have an impact.

In our posting dated 8 December, we asked whether or not the Patent Package still is “broadly accepted in substance” by the Council members, as put in the nightly press release coverning the results of the Competitive Council meeting on 5 December. At least the opinions of Commissioner Barnier's Director General, Mr Pierre Delsaux ("discord remains on all points concerning the creation of a court"), make doubt about whether the above question can still be answered by "yes".

Especially the strong desire of (parts of) industry [1] and patent professionals [1][2][3], politically supported by JURI member Wikström and UK IP Minister Baroness Wilcox, to remove Articles 6 to 8 dealing with substantive patent law on patent infringement from the proposed Regulation appears to be still at stake (see also here or here). The fears of those groups are that otherwise substantive patent law would become part of EU legal order causing costs, delays, legal uncertainty. A related EPLAW resolution expressed such concerns in a rather pointed way:

If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.

If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.

And if somebody intended to lay a solid ground for failure of this - at some time very promising - project, then he will probably succeed.

Our posting dated 12 December adressed Italy's attitude towards the Unified Patent and the Unitary Patent Court, now that pro-European former EU Commissioner Mario Monti is in power. As also leaked by Mr Pierre Delsaux, Prime Minister Monti is in fact considering joining the unitary system, as also reported on the Government website 'Politiche Europeo' under the headline "Italy’s ‘yes’ to the European [Patent] Court" on 8 December 2011:

[...] At the EU Competitiveness Council in the late afternoon of Monday, Enzo Moavero Milanesi, who for the first time participated as [Italian] Minister for European Affairs, has partially corrected the course of [Italy's] previous government concerning the international agreement for establishing the Unified Patent Court. From now on, therefore, Italy will participate in the negotiations regarding the agreement to constitute a [Unified Patent Court].

It meanwhile has been confirmed that "Italy will participate to the negotiation on Unified Patent Court Agreement [, while] it appears that the Italian Government at the moment does not intend to withdraw the ECJ action" and thus is not yet prepared to accede to the Unitary Patent as well.

Another open question is the seat of the Central Division of the Unitary Patent Court. The most promising candidates still appear to be Munich, London, and Paris, whereas London may have minimised its chances due to Prime Minister Cameron's recent political moves while Milan is at least put forward by Italian politicians in return for acceding the Unified Patent system.

In any case, the next official steps will be taken on

19/20 Dec, meeting of the Legal Affairs Committee JURI,
22 Dec, end-of-presidency ceremony in Warsaw (see here).
14 Feb 2012, first plenary session of the EU Parliament (see here),
2014, entering into force of the Patent Package.

(Photo 2006 by tata_aka_T, via Flickr under a CC license)

A Crazy Day in Brussels Ended with Luxemburg receiving the Court of Appeal of the Unified Patent Court? (Updated)

2011-12-06T16:42:00.009+01:00

Luxembourg, future home of the Court of Appeal of the Unified Patent Court?

It has been a crazy day in Brussels and in the IP blogoshere yesterday, beginning - despite of harsh criticism - with hopes of the Polish Presidency to obtain an agreement on the EU Patent Package including the seat of the Unified Patent Court, continuing with expectations, speculations [1], [2] and frustrations due to the fact that the only source of information being common-place press conference repeating the same old known mantras (like the enormous cost reduction the Unitary Patent would bring; opposing view here), accompanied by 'water level reports' and even more speculations in the blogoshere ([1], [2], [3]).

At the end of the day we were left with a press report and a Commissioner's tweet telling us that an agreement was missed by only a small margin and a few more days were needed.

Now the ksnh::law blog (and others [1], [2]) told us in a posting titled "EU Patent Package: No (Complete) Solution Yet" how it ended in the night, keeping in mind that the question really electrifying the blogosphere was, of course, the seat of the new Court.

A nighly press release after the first day of the final Council meeting under the Polish Presidency (Chair: Waldemar Pawlak, Deputy Prime Minister and Minister of Economy of Poland) explained:

[...] The debate took place on the basis of a compromise package drawn up by the Presidency. The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011. [...],

while the Presidency disclosed on twitter that only the seat of the Central Division of the Unitary Patent Court needs to be decided, apparently meaning that the seat of the Court of Appeals has already been determined!

Further, EUobserver believed to know that a compromise as to the "seat of the main litigation court for the upcoming EU patent" - apparently Paris - was refused by Britain and Germany. Further:

under the non-contentious parts of the deal, Luxembourg would get the appeals court, Slovenia and Portugal two mediation and arbitration centres and Hungary a training facility,

... leaving us behind waiting and wondering whether or not this EU-specific melange of national interests blocking straightforward solutions (Munich, London or Paris) and endless negotiations giving birth to minimalist compromises might by a reason why international investors increasingly distrust the European Union's capability of solving the continent's dept crisis. Let's hope that Merkel and Sarkozy will prove this presumption wrong at this week's EU summit - and later on also Pawlak and Barnier.

UPDATE (07.12.2011): Under the headline "Agreement on substantial issues of single EU patent", the Polish Presidency reports on the issued the EU Council could agreed on 5 December, not forgetting to again stressing that this "may reduce the cost of obtaining the protection of inventions in the EU by as much as 80 percent" (in which statement the "may" is the most interesting part) and coining the sexy term "Warsaw Convention" for the package, maybe to prevent the whole thing being called Warsaw Pakt one day:

[...] Out of the whole patent package the only remaining issue to be decided is the seat of the central division of the Unitary Patent Court UPC (Court of the First Instance).

[...] In [Mr Pawlak's] opinion it is possible to adopt “the Warsaw Convention” – initialing of the negotiated text of the agreement creating the UPC by the representatives of EU member states – already on 22 December 2011 in Warsaw.

[...] We agreed, amongst others, on the locations of the Court of Appeal in Luxembourg and the Patent Mediation and Arbitration Center in Lisbon and Ljubljana, as well as the basic principles of the funding of the UPC [...].

By the way, there already is a 'Warsaw Convention', namely that of 1929 for regulating liability for international carriage of persons, luggage or goods performed by aircraft for reward, as can be learned from Wikipedia. It may thus be more appropriate to refer to this legislation as the "Warsaw Patent Convention".

(Photo 2005 by Jepoirrier, via Flickr under a CC license)

European Parliament Announcend "Done Deal" on EU Patent Package with some Pride

2011-12-04T13:06:00.000+01:00

Tuesday last week the European Parliament rhetorically asked in a press release (pdf) if the deal on the EU patent was already done. An official press release having this headline is truly sensational, since it implies that there are reasonable chances that Spain and Italy would agree on the EU Patent Package as well.

However, a closer look into the press statement shows that sadly it is not announcing a sensational transformation of the enhanced-cooperation-driven Unitary Patent approach into an unanimous European Union Patent thanks to a last minute attempt of the EU Parliament, but only refers to the closed door negotiations between the EU Council under the Polish Presidency and JURI, the Parliament's Legal Affairs Committee (see related postings on ksnh::law and this blog):

Parliament's rapporteurs struck a political agreement with the Polish Presidency of the Council on the three proposals (unitary patent, language regime and unified patent court) that form the "EU patent package".

But this might be good news as well, since the JURI Rapporteurs Bernhard Rapkay (S&D, DE, in charge of 'Unitary Patent Protection'), Raffaele Baldassarre (EPP, IT, in charge of the 'Translation Arrangements') and Klaus-Heiner Lehne (EPP, DE, in charge of the 'Jurisdictional system for patent disputes') followed an agenda involving reduction of patenting costs for small firms and avoiding legal confusion created when dealing with differing national patent laws, whereas the latter issue is already solved by the tabled draft texts (Document 11328/11 “Proposal for a Regulation [...] implementing enhanced cooperation in the area of unitary patent protection” dated 23 Jun 2011 and Document 15539/11 “Draft Agreement on a Unified Patent Court and draft Statute” dated 19 Oct 2011).

However, the press statement does not go beyond the usual success stories and well known phrases like "major step for EU industry's competitiveness" and "strengthening SMEs' interests". It appears as if the European authorities in charge follow a dramaturgical agenda and try to even increase the tension among patent system users and professionals to be able to present a perfectly tailored "Patent Christmas Package" on the Warsaw end-of-presidency ceremony on 22 December.

The regulation setting up a unitary patent protection system:

The agreed text largely reflects the Commission proposal, and in particular a provision allowing inventors from countries currently outside the procedure to apply for an EU patent. [...] Specific provisions have been introduced to ensure that small firms benefit from reduced costs and a sound system for distributing patent renewal fees

Upon interpreting the meaning of this abstract statement a look into the amendments to the Unitary Patent regulation as suggested by the JURI commitee might help (Document PE472.059v02-00 - COM(2011)0215 – C7-0099/2011 – 2011/0093(COD), Amendments 1 – 44 - and Document PE475.775v01-00, Amendments 45 – 94).

Language Arrangements:

The proposed regime for translating EU patents would make them available in German, English and French, although applications could be submitted in any EU language. Translation costs from a language other than the three official ones would be compensated.

Rapporteur Baldassarre added that "specific measures have been agreed to facilitate SMEs' access to the European patent market [reaching] from a stronger legal protection to full compensation of translation costs" and that "for a transitional period a second full translation into English will be obligatory" - while the SME issue might again refer to translation costs, the remaining points have been already introduced in the Proposal for a Regulation on the Unitary Patent, Document 11328/11.

Unified Patent Court:

Regarding this piece of legislation it is only reported that Rapporteur Lehne "made sure that the litigation system is efficient, by giving it a decentralised structure, clear procedural rules and judges selected for their competence" - whatever that might mean before the backgrond of the present text of the Draft Agreement that realises such issues at least to a certain extent. Some hints on what such cryptic statements could actually mean might be drawn from Mr Lehnes agenda for the negotiations as setup in Document PE475.785v01-00 (Amendments 1 – 25 concerning “Motions for a resolution”, 2011/2176(INI), Jurisdictional system for patent disputes) and Document PE472.331v01-00 (Suggestion for a "Motion for a European Parliament Resolution" with amendments 2011/2176 (INI)).

Countdown to the Agreement:

5/6 Dec, Meeting of the Competitiveness Council in Brussels (see here and here).
8/9 Dec, EU Summit of the Heads of Government in Brussels,
19/20 Dec, meeting of the Legal Affairs Committee JURI,
22 Dec, end-of-presidency ceremony in Warsaw (see here and here).
14 Feb 2012, first plenary session of the EU Parliament (see here),
2014, entering into force of the Patent Package.

(Photo 2005 by Salid Shadid, via Flickr under a CC license)

Seat of the Unified Patent Court to be Determined Comming Monday?

2011-12-02T23:50:00.004+01:00

It appeast the race for the seat of the future Unified Patent Court is going between London and Munich. While the German Government mad its bit for Munich already months ago, the Cameron administration needed to be pushed by professionals lately (e.g. by LES-UK and IP Foundation) to finally make its bit for London.

As we knew that the seat of the Patent Court is scheduled to be announced on 22 December 2011 in Warsaw at the end-of-Presidency ceremony (see here), we now got aware of the fact that the decision may be drawn (but disclosed?) already at the Competitiveness Council meeting comming Monday, 5 December, as reported by ksnh::law in today's posting titled "Memo for Competitive Council Meeting on 5, 6 Dec 2011 names 'Seat of the future Unified Patent Court' as Controversial Issue", refering to today's press release (MEMO/11/864) announcing that

"the Polish Presidency will present for agreement a number of outstanding, politically sensitive issues including the seat of the future Unified Patent Court [...]."

This, however, does not necessarily mean the Ministers be able to agree on a Court seat (neither that the seat is disclosed when they are able to find one - but nowadays leaking is very popular), such highly political issues are very often left for the Heads of Government, who will meet again on 8/9 December at the Brussels EU Summit.

The debate is scheduled to start Monday morning at 9:30 with the proposal for the regulation implementing enhanced cooperation in the area of the creation of unitary patent protection and the applicable translation arrangements (see agenda) and to continue the examination of files related to the creation of unitary patent protection and of a unified patent litigation system in the afternoon (see background note).

The debate and the related press conferences after lunch and a the end of the evening session will be webcasted so that "thousands of patent lawyers, academics, judges and Kats across Europe [will hold] their breath....", as the IPKat put it.

As I am a little biased and would appreciate to have the new Court within subway distance, I do wish London, the city where I once studied, all the best. By the way, if I understand the reports on the London bit right, it appears to relate to the Central Division of the Court of 1st Instance only. Wouldn't it be salomonic to have the Appeal Court in Munich then?

How Exactly Works the Future Europen Patent System with the Unitary Patent and Unified Patent Court? (UPDATE)

2011-11-29T08:18:00.001+01:00

While stakeholders frequently discuss the political and financial issues in connection with the Unitary Patent and the related Unified Patent Court, the procedural and patent law related features of the new framework are not so often exhibited.

In a recent article titled "The Essential Features of the Unitary Patent and Unified Patent Court – An Itemized Overview" we provide on our corporate ksnh::law blog a clear survey on what will become reality soon, covering the following aspects:

I. The historic developement of the discussion

The Community Patent
The European Patent Convention
The London Agreement
The Unitary Patent

II. Unitary Patent Protection

Legal Framework
Request for Unitary Effect
Legal Effect of Unitary Patent
Object of Property
Annuities
Substantive Rights
Transitional Rules

III. TRANSLATION ARRANGEMENT

Translations upon Grant
Translations upon Infringement/Invalidity Actions
Transitional Rules

IV. UNIFIED PATENT COURT

General Framework
Structure of the Court of First Instance
Competences of The Court
Stucture of the Divisions of Court of First Instance
Structure of the Court of Appeal
Language of the Proceedings
Miscellaneous

V. PROS AND CONS

UPDATE (04.12.2011): The German version of this overview can be found on ksnh::jur.