EU Parliament Might Reject Inclusion of Patents into IPRED.
The Draft Report by Mr. Nicola Zingaretti on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COM(2006)0168 - C6-0233/2005 - 2005/0127(COD)) to the European Parliament's Committee on Legal Affairs has recently been published on the web. A particular proposal as set out therein to amend the Draft Directive now says (emphasis added, --AHH):
"[...] The Community legislator has the power to take the criminal-law measures that are necessary to guarantee the full effectiveness of the rules it lays down on the protection of intellectual property, as defined by this directive, other than patents. [...]"
Justification is given as follows:
"[...] 3. The statement by the Commission (2005/292/EC) concerning Article 2 of Directive 2004/48/EC lists the property rights concerned in order to establish more precisely the exact scope of the directive. The list includes 'patent rights, including rights derived from supplementary protection certificates'.
4. However, applying criminal penalties laid down at Community level to infringements of patent rights does not seem to be either particularly appropriate in itself, or consistent with the approach followed in recent years by the Community legislator.
5. There is no evidence of any urgent need to intervene by imposing criminal penalties, since many Member States already enforce patent protection by means of criminal penalties (i.e. fines and custodial sentences). This applies, for example, to the German, Austrian, Danish, Spanish, French, Hungarian, Italian, Dutch and Portuguese legislation. Consequently, though attention should be drawn to the absence of any protection in criminal law under other legal systems (for example under English, Belgian and Greek law), the introduction of provisions of this kind at Community level would duplicate existing provisions and make the system even more cumbersome, unless we suppose that, either through the insertion (by means of an appropriate amendment) of an explicit provision to that end in the directive or as a result of the 'automatic primacy' of Community law, Community legislation on the subject could completely replace the corresponding national legislation.
6. Secondly, seeking to apply criminal penalties in the area of patent law seems to be plainly in breach of the position taken by the European Parliament when, at its plenary sitting of 6 July 2005, it rejected the Commission proposal for a directive on the patentability of computer-implemented inventions (2002/0047(COD)). Given that an overwhelming majority of the European Parliament considered at that time that it was inappropriate to adopt legislation on the subject, any attempt now to provide for criminal penalties to protect patents (which are not currently regulated) would be a limited and dangerous foray into a very complex area which, for that very reason, requires a regulatory framework that it as systematic and widely endorsed as possible.
7. In the light of the foregoing, the rapporteur proposes amendments to Articles 1 and 2 of the proposal for a directive in order to demarcate its scope and provide the relevant definitions. In practical terms, the effect is to exclude from the scope of the directive the subject of patents by establishing that, pending the adoption of more comprehensive rules on patents at Community level in future (in the form of a suitable directive), the provisions of the present proposal should not apply to patents. This would avoid prejudging the content (including the criminal aspects) of any future legislation on patents. Moreover, it would restrict the scope of the directive to those intellectual property rights provided for by Community legislation. [...]"
I think that the result is correct - criminal law is in many (if not most) cases inappropriate when dealing with patent infringement matters. However, item 6 as quoted above sounds strange, and I must admit that I do not understand the logic behind it. Maybe that Mr. Zingaretti has seen certain political reasons encouraging him to recite the Parliament' voting on the failed Directive on patentability of computer-implemented inventions.
Draft Report by 
criminal law is in many (if not most) cases inappropriate when dealing with patent infringement matters. However, item 6 as quoted above sounds strange, and I must admit that I do not understand the logic behind it. Maybe that Mr. Zingaretti has seen certain political reasons encouraging him to recite the Parliament' voting on the failed Directive on patentability of computer-implemented inventions.