Further News Concerning the EU Project "Enhancing Th...

As regards the Unified Patent Litigation System, the Working Party had discussed the economic aspects of a unified and integrated patent litigation system on the basis of an expert study performed by Professor Dietmar Harhoff on behalf of the Commission. His report highlighted the economic benefits of the unified patent litigation system and supported a strong recommendation to proceed with efforts to establish a litigation system for both European and Community patents. The study gave an estimate of total annual savings by businesses of 148 to 289 million EUR compared to the current fragmented patent litigation system. This cost saving exceeds likely operating costs of the future unified patent litigation system by more than five times.

In its Opinion of November 20, 2008 (Document 15487/08), the Council Legal Service had recommended that the ECJ be consulted on the compatibility of the envisaged Agreement on the European Union Patent Judiciary with the EC Treaty, in accordance with Article 300(6) EC as soon as a recommendation to open negotiations is submitted by the Commission. However, unfortunately this Document has been published only heavily redacted with all of its substantial parts being taken out. Moreover, a related Corrigendum (Document 15487/08 CORR1) is not available at all.

Further Document 9549/9 reports that, to the call at the December 2008 Council by a number of Member States for the Commission to propose negotiating directives on a future international agreement establishing a patent litigation system, the Commission has adopted, on March 20, 2009, a Recommendation to the EU Council to authorise the EU Commission to open negotiations for the adoption of an Agreement creating a Unified Patent Litigation System (Document 7927/09). This Document is not available on the website of the EU Council, too; see my earlier posting here. However, it appears that the Commission has published the underlying Document SEC (2009) 330 final on their own website. The EU Commission recommends Negotiation Directives as follows:

• The Agreement shall be concluded by the European Community, its Member States and other Contracting States of the European Patent Convention.
• The Commission shall ensure that the court structure established in the framework of the Unified Patent Litigation System will have jurisdiction both in relation to European and Community patents.
• The Commission shall ensure that the provisions laid down in the draft Agreement and any legal instrument forming part of the draft Agreement comply with the acquis communautaire. This requirement shall be subject to express derogations from the acquis required for the purpose of the creation of a specialist patent court.
• The Commission shall ascertain that the Court of Justice of the European Communities would rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community.
• The Commission shall ensure that the rules of the draft Agreement are consistent with the creation of a Community patent.

With other words, the desired Unified Patent Litigation System is attempted to cover also EPC countries which are not Member States to the EU Treaties like e.g. Turkey.

On April 02, 2009, the EU Commission has presented the above-cited Recommendation to the Working Party, where a large majority of delegations expressed their wish to proceed rapidly with a consultation of the ECJ on the compatibility of the draft Agreement with the EC Treaty. Accordingly, the Czech EU Presidency has drawn up a working document outlining possible issues to be covered in a request for an Opinion under Article 300(6) EC on the compatibility of the draft Agreement with the EC Treaty (Document 9076/09). This Document, which also is not available to the general public, was then discussed on May 08, 2009. According to Document 9549/09, there appears to be a broad consensus among delegations to defer a detailed examination and adoption of the Commission's recommendation until the ECJ has given an opinion on the draft Agreement.

Hence, the EU machinery of institutions in Brussels is worried that there could be some sort of legal problem when creating a Unified Patent Litigation System but they won't tell us where the bug might actually sit. If no papers leak out we'll have to wait until the ECJ has finshed deliberations. I don't have any idea how long this might take.

With regard to the Community patent, the Czech EU Presidency had advanced discussions in the Working Party by presenting a working document (Document 6044/09) on possible cooperation arrangements between patent offices in Europe based on enhanced partnerships.

Said Document 6044/09 states that the capacity of National Patent Offices (NPOs) in providing innovation support facilities, in particular to SMEs, in Member States under the Community patent needs to be safeguarded and that there is concern whether NPOs can maintain sufficient technical capacity to perform these functions if the balance between national patent applications and European/Community patent applications is shifted towards the latter. EU Member States are invited to explore possible avenues that could be pursued for cooperative arrangements under the Community patent. The EPO plays a central role in the grant of high quality European patents, and will be pivotal to the success of the Community patent. Given the strength and depth of technical expertise at the EPO, it is undisputed that the Community patent should be entrusted to the EPO. The EPO must remain responsible for the examination and the grant of the Community patent. However, nevertheless NPOs are said to play an important role in the future system under the Community patent. Where services are provided to users, they will need to be up-to-date, and may require modernisation to attain high levels of efficiency. In particular, the EPO and NPOs should complement one another in meeting these objectives. Collaboration must add value to the work of the EPO as the main granting authority for patents in Europe. At the same time, NPOs wishing to participate in collaboration with the EPO in particular areas should be encouraged to do so. This should both make use of their existing expertise and strengthen their capacity to enhance the patent system in the future. Future partnership under the Community patent should take advantage of recent experience gained from the European Patent Network (EPN). In particular, the Utilisation Pilot Project (UPP) could provide a useful basis for collaboration under the Community patent.

However, the assessment of the UPP piloted so far appears to be somewhat disputed. There are constant rumours that it has showed little success so far. Nevertheless, the EU Member States have showed broad support for these proposals and a willingness to develop them further in view of the future Community patent system.

Furthermore, Document 9549/99 reports on the Working Party discussing economic aspects of the Community patent on the basis of an expert study carried out by Professor Bruno van Pottelsberghe on behalf of the Commission. This report is said to have highlighted that the creation of a Community patent would facilitate innovation and would, in particular, provide European SMEs and universities with a competitive edge. Moreover, by presenting quantitative simulations of different fee scenarios and keys for the repartition of renewal fees between national patent offices, the study is acknowledged to have demonstrated clear economic benefits for a Community patent with relatively low annual renewal fees. The Czech EU Presidency considers that this study provides a solid basis for further work on the level and distribution of renewal fees.

Finally, the Working Party has discussed a revised version of the Community patent Regulation presented by the Presidency (Document 8588/09), which should form the basis for further discussion and work on the outstanding issues in the coming months.

So, the political fate of both projects remains unclear for any foreseeable future. With regard to the proposed Unified Patent Litigation System, nothing of importance will happen before the European Court of Justice ECJ has had its say. And, I don't think that the EU Community Patent can progress substantially without the Unified Patent Litigation System being assessed without severe objections by the ECJ. But for sure I would appreciate if the responsible bodies could take a decision to publish the Documents concerning the referral to the ECJ soon.