(Partial) Political Breakthrough: Conclusions On An Enhan...

The EEUPC should have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of EU patents and European patents. The European Court of Justice (ECJ) will be entrusted with ensuring the principle of primacy of EU law and its uniform interpretation but the Council did not give any indication that ECJ will have powers on patent law jurisdiction in general.

Mr David LAMMY, UK Minister of State for Higher Education and Intellectual Property

On the one hand, today's decision of the EU Council clearly appears to be some sort of political breakthrough. On the other hand, important questions are left open. According to the Council's conclusions, the EU Patent Regulation should be accompanied by a separate regulation which governs the translation arrangements for the EU patent adopted by the Council with unanimity in accordance with Article 118 second subparagraph of the Treaty on the Functioning of the European Union:

"[...] The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament. [...]"

The EU Patent Regulation should come into force together with the separate regulation on the translation arrangements for the EU patent. This gives a hint towards some real problems behind the scenes: The Lisbon Treaty allows majority decisions in the Council but not on language matters. Hence, the delicate matter of translations of European patents - in this context even the deployment of pure machine translations are considered - is singled out into a separate Regulation requiring unanimity.

EU Council Document 16113/09 ADD 1 conveys a revised proposal for a Council Regulation on the European Union patent drawn up by the Presidency for discussion at the meeting of the Council (Competitiveness) on 4 December 2009. In view of the entry into force on 1 December 2009 of the Lisbon Treaty, the term "Community" has been replaced by "European Union", where appropriate, throughout the text (see Art. 1 of the Treaty on European Union as amended by the Lisbon Treaty). Hence, we again have to learn new terms in the context of the ever ongoing story of that what formerly was called 'Community Patent'.

As already pointed out earlier in this Blog, it should not be overlooked that the decision to build UPLS - now: read EEUPC - on the basis of an Agreement outside the EU Lisbon Treaty not only enables accession by non EU-States like Turkey but also means that the painstaking process of ensuring ratification by all EU member States plus interested States outside the EU has to start again. And the Danish Government has already indicated in Document 14531/09 that this would require transference of competence which means that according to the Danish Constitution this would require either a national referendum or a 5/6 majority in the Parliament. Plus, of course, there is a pending referral of legal questions to the European Court of justice (ECJ) which also have not been published yet. Before any final decision, the ECJ must have their say. And, in addition, the EU Council now formally has recognised that some Member States have fundamental legal concerns concerning the creation of the EEUPC and its envisaged overall architecture as reflected in these conclusions which still are open to be revisited in the light of the opinion of the European Court of Justice. Nobody has told us up to now which countries exactly are carrying such concerns, and even the questions referred to ECJ have not been disclosed to the general public so far.

(Photo: 2009 EU Council 1 and 2)