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Interpreter in the EU Parliament (Strasbourg)

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

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

Well, can this sentence be taken at nominal value?

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

Mr Ian Hargreaves

The review is expected to report in April 2011 and will look at:

• Barriers to new internet-based business models, including the costs of obtaining permissions from existing rights-holders;
• The cost and complexity of enforcing intellectual property rights within the UK and internationally;
• The interaction between IP and Competition frameworks;
• The cost and complexity to SMEs of accessing services to help them protect and exploit their IP.

According to a report in The Telegraph, Mr Mark Owen of media and entertainment law firm Hartbottle & Lewis said the prospect of another review was 'depressing', a waste of money and reflected a lack of strategic thinking in policy making. However, on the contrary, Mr Ilya Kazi, Chartered Patent Attorney and partner from intellectual property advisors Mathys & Squire is reported to have said in the same Telegraph article said that 'The announcement of a review of British IP laws is long overdue'.

See also Mr Joff Wild here and there in the IAM Blog.

(Photo: (C) Cardiff University)

Mr Vincent Van Quickenborne, Minister for enterprise and streamlining policy of Belgium, presiding over EU Council meeting

As already reported yesterday on this Blog, today there has been an extraordinary session of the EU Council - Competitiveness (Internal Market, Industry, Research and Space) - solely devoted to the EU Patent issue. The Council session begun on Wednesday November 10, 2010, at 1600h. It was chaired by Mr Vincent Van Quickenborne, Belgian Minister for enterprise and streamlining policy. In public deliberation, the Council exchanged views on translation arrangements for a future EU patent system. The meeting was then followed by an informal non-public working dinner.

The deliberations were based on Document 15395/10 as well as on an addendum Document 15395/10 ADD1 hastily put on the table by the Belgian Presidency.

A video of the public deliberations is available on-line (however, I'm afraid, only for users utilising a Microsoft Windows platform, unfortunately)

After 2200h it was clear that the meeting had failed to reach a compromise.

In a press conference, Mr Vincent Van Quickenborne explained that, in his view, 'no stones were left unturned, however, in spite of the progress made, we have fallen short of unanimity by a small margin'. He said that 26 of 27 delegations 'were in negotiation mode' while 'one delegation apparently did not have a mandate to negotiate'. Hence, the conference was a failure by a very narrow margin. However, in view of the fact that the Lisbon treaty requres unanimity in all language issues, there seem to be little chances to go further ahead. The Belgian EU Presidency will now re-consider the result of today's meeting and decide on how to proceed. Mr Vincent Van Quickenborne made some vague indications of thinking about 'other avenues in the (Lisbon) treaty'.

While Mr Vincent Van Quickenborne did not explicitly name the single one country that 'was not in negotiation mode'. I think that he hinted at Spain, the representative of which, Mr Diego LÓPEZ GARRIDO, Secretary of State for the European Union in the Spanish Ministry of Foreign Affairs and Cooperation, re-iterated at length the stubborn rejection of the Madrid Government of taking the 'Munich' three languages regime (English, German, French) of the European Patent Convention (EPC) as a basis for a future EU Patent. In particular he argued that the proposals tabled by the Belgian Presidency would mean that after a transitory period of six years or so the EU Patent most likely would be reduced to the 'Munich' three languages system which the Spanish Government finds inacceptable. The representative of the Italian Government, Mr Andrea RONCHI, Italian Minister of European Affairs, also brought forward various reservations but my overall impression was that Italy has been in 'negotiation mode' as reflected by Mr Van Quickenborne.

It is a pain to watch the Government of a country like Spain ruining progress on EU level by insisting on nurturing some sort of national pride.

[UPDATE_1 2010-11-11] See the Official press release here.
[UPDATE_2 2010-11-11] See an article on euactive.com.
[UPDATE_3 2010-11-11] See also an article by Mr Simon Taylor on EuropeanVoice.com, saying: "[...] The next step is likely to be an attempt to use enhanced co-operation powers to allow a group of member states to set up common patent rules. This requires a request from at least nine member states and needs to be approved by a weighted majority. The European Commission's view is that such a move would not harm the internal market. [...]". Apparently this is meant by 'other avenues in the (Lisbon) treaty' yesterday hinted at by Mr Van Quickenborne.

(Photo: (C) 2010 by The Council of the European Union)

The Peer-to-Patent project (also known as the Community Patent Review project) is an initiative that seeks reform of the patent system by gathering public input in a structured, productive manner. Peer-to-Patent seeks to improve the quality of issued patents by connecting the USPTO to an open network of experts online.  In July 2009, I had reported that a first pilot phase of the U.S. Peet-to-Patent project was set oin hold. A new Peer To Patent pilot recently was announced by the U.S. Patent and Trademark Office and New York Law School. The new pilot will test the ability of the project to scale, both in volume and across subject matter areas. The maximum number of applications to be processed in this pilot has been increased to 1000 from the lower limit of 400 in the earlier pilot. In addition, the classes of subject-matter eligible to participate in the pilot is being increased threefold and will now include biotechnology, biopharmaceuticals, telecommunications, and speech recognition technology. The new pilot will commence on October 25, 2010 and will continue to accept applications through September 30, 2011. Several other changes are being made in this pilot from the earlier pilot, including a shortening of the time for review by about two weeks and a reduction in the number of items of prior art being forwarded to the USPTO from 10 to 6. Prior experience indicated that the period for peer review could be shorter and that there were few instances where more than 6 items of prior art were submitted.

It now has emerged that the UK Intellectual Property Office is set to join a Peer-to-Patent approach. On the UK-IPO website Baroness Wilcox, UK Parliamentary Under-Secretary for Business, Innovation and Skills, is quoted:

"The IPO will also trial a peer to patent project, which aims to improve the quality of the patents by ensuring they are sufficiently new and inventive. Patent examiners cannot be expected to have access to all the information already in the public domain and this project aims to address that. In the trial selected patent applications would be available for people to comment on and crucially rate each other comments. The highest rated comments would then be submitted to the patent examiner."

No further details are known so far.

As reported earlier, the Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement. After a series of draft text leaks in 2008, 2009 and 2010 the negotiating parties had published a first official version of the then current draft on April 20, 2010. A new consolidated draft text, reflecting the outcome of the final (Tokyo) round of negotiations, was released on October 06, 2010. Now, papers have leaked saying that ACTA Parties agreed to have a technical meeting to finalise the legal scrub of the ACTA text. Australia has offered to host the meeting on November 30 to December 03 or, if neccessary, up to December 04, 2010.

It appears not to be easy to properly assess the impact this ACTA version might have on future Intellectual Property enforcement regimes in the European Union and elsewhere. In a paper drafted by the EU Commission DG Trade now circulating on the Internet a statement is given to the effect that while it was obviously in the interest of the Commission to achieve a result in the negotiations that is as close as possible to the rules in force in the EU (including TRIPS), it was not possible to reproduce, in such an international negotiation, the acquis to the latter. According to the EU Commission and from a legal point of view, there are no objections against agreeing on a lower level of harmonisation in ACTA, compared to the EU acquis. Nevertheless, the EU Commission has bothered themselved with drawing up a list of Provisions of ACTA that provide value compared to existing international standards and in particular WTO/TRIPS.

As it was reported by my colleague Volker 'Falk' Metzler on his Visae Patentes Blog earlier this day, there are indications that the well-informed EurActiv network has seen a new compromise text proposed by the Belgian Presidency, which is hoped to have the potential to break the deadlock and lead to a historic deal at an extra-ordinary Competitiveness Council to be held on November 10, 2010 (i.e. tomorrow).

Just today Document 15395/10 dated November 08, 2010, has surfaced, confirming those reports. It is authored by the present Belgian EU Presidency and titled Proposal for a Council Regulation on the translation arrangements for the European Union patent - Political orientation.

For those who need a concise presentation of the timeline of the planned EU Patent, the first section of that Document 15395/10 gives an extended chronological overview starting with August 01, 2000. On this day the EU Commission adopted a proposal for a Council Regulation on the Community patent. The timeline as presented ends with the policy debate held by the EU Council on October 11, 2010, on the elements for a compromise by the Presidency for a political orientation regarding the main principles and features of the translation arrangements for the European Union patent. The proposal took into account the elements discussed in the Council Working Party, at the dinner of the Informal Competitiveness Council on 29 September 2010 and also at the meeting of the Permanent Representatives Committee on 6 October 2010.

According to Document 15395/10, a very large majority of delegations supported the elements for compromise proposed by the Presidency, which have been considered to be suitable to serve as basis for further discussions. Several delegations stressed the importance of the accompanying measures being made available by the time the EU patent system becomes operational, namely: a high quality system for machine translations of patent documentation from all three EPO languages into all EU languages and the compensation of the costs related to the translation of patent applications filed in EU languages other than the official languages of the EPO.

Again according to the cited Document, a very large majority of the delegations emphasized that certain red lines have to be respected by any possible final compromise:

• no significant costs should arise from additional translations and that
• the translation arrangements applicable for EU patents must ensure legal certainty and preserve the unitary character of the EU patent.

Several Member States have indicated that they are ready to consider the possibility of establishing the EU patent within the framework of an enhanced cooperation, should the Council not be able to reach agreement before the end of 2010.

Nevertheless, the Belgian EU Presidency has announced that it will intensify and accelerate work on this file with a view to reaching a successful outcome before the end of this year.