EU

In an earlier posting I had reported that, on the first day of the Belgian EU Presidency, the EU Commission had published a Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent. This Document suggests to require human quality translations of EU patents only in case of a dispute. Otherwise, machine translations are deemed to be sufficient for informing the general public.

On September 03, 2010, the General Secretariat of the EU Council has published Document 13166/10 titled Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent - Background note on machine translations. The paper is addressed to Working Party on Intellectual Property (Patents). In particular, it conveys in its Annex a background note on machine translations for the EU Patent, drawn up by the Commission services, as a basis for discussions at the meeting of the Working Party on Intellectual Property (Patents) on September 08 and 09, 2010.

Only now I have stumbled upon Opinion 01/09 - Statement by the Advocates General of the Court of Justice of the European Union concerning the European Patent and the Community Patent Court as planned by the EU Council; see my earlier postings here, there and there. The date on that Document (Original in French only) is July 2, 2010; however, the Opinion was not published on the Official website of the Court of Justice of the European Union (formerly known as European Court of Justice, or ECJ for short). A link to the French version was posted on August 19, 2010, on EPLAW Patent Blog.

I won't understand those childish games played by interested circles inside of and close to the EU Council in a futile attempt to withhold such important documents from the eyes of the general public.

Anyway, what the Advocates General have to say to the proposal submitted by the EU Council last year is highly relevant:

A first snippet from the Document makes clear that the Advocates General are not opposed to the general layout of the proposed Patents Court (PC) to resolve certain classes of disputes between individuals:

"61. We should first examine whether the European Union judicial system, as resulting from the treaties, prohibits assigning to the future PC sole competence to hear certain disputes between individuals in the Community patent field.

62. The Advocates-General do not believe that that is the case."

The bombshell, however, appears a bit later in the Document:

Today, the European Court of Justice (former ECJ) has published the decision in Case C-428/08, reference for a preliminary ruling under Article 234 EC from the Rechtbank's-Gravenhage (Netherlands), made by decision of 24 September 2008, received at the Court on 29 September 2008, in the proceedings

Monsanto Technology LLC

v

Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH,

Intervener in support of the defendant: Argentine State:

1. Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism.
2. Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it.
3. Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable.
4. Articles 27 and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) do not affect the interpretation given of Article 9 of the Directive.

(Source: 11805/10 ADD1 / SEC(2010) 796)

The EU Council recently has published

• Document 11805/10: Proposal for a Council Regulation on the translation arrangements for the European Union patent. This is merely a wrap-up of the original EU Commission Document as discussed in my earlier posting here.
• Document 11805 ADD1: Commission staff working document: Impact Assessment accompanying document to the Proposal for a Council Regulation on the translation arrangements for the European Union patent.
• Document 11805 ADD2: Commission staff working document: Summary of the Impact Assessment accompanying document to the Proposal for a Council Regulation on the translation arrangements for the European Union patent.

On December 04, 2009, a (partial) political breakthrough had been achieved by the EU Council: A number of conclusions on an enhanced patent system in Europe were fixed on that day.

EU Council Document 16113/09 ADD 1 served as a basis for the political concord and conveyed 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 December 04, 2009. Article 61 thereof stated that the Regulation shall be accompanied by a separate regulation, which shall govern 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 EU. This Regulation shall come into force together with the separate regulation on the translation arrangements for the EU patent.

Just today, on the first day of the Belgian EU Presidency, the EU Commission has published a Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent.

In November 2007, Dr. Jens Gaster, GD Internal Market, EU Commission, Brussels, had given a presentation which was then hosted by the Bavarian chapter of Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht (GRUR) on the premises of the German Patent and Trade Mark Office in Munich; see my report here. The presentation had been given in German under the title "Erste Schritte auf dem Weg zu einer umfassenden Reform des Patentsystems in Europa" which means something like "First steps towards a comprehensive reform of the patent system in Europe". 

Now, labeling of that project has changed, we talk about the EU Patent and, corresponding thereto, the European and Community Patents Court (PC).

After some political progress had been reached on the session of the EU Council on March 28 and 29, 2009 (2945^th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research)), an important breakthrough was obtained on December 04, 2009.

At the beginning of the year 2010, the fate of both ambitious projects appeared to be substantially dependent from two external developments:

• The languages issue had been factored out of the texts agreed upon on December 2009. A political compromise still need to be obtained.
• The EU Council had taken a decision to allow for a re-examination by the European Court of Justice (now Court of the European Union) of the compatibility of the drafted agreement on a single court system for solving patent disputes with EU law.

There appears to be no visible progress with regard to the languages issue since end of 2009. With regard to the referral to the Court, significant news came after the hearing held on May 28, 2010 - see my reports here and there.

However, during the IPBC held in Munich earlier this week, Ms Margot Fröhlinger, Director of Knowledge-Based Economy inside the DG Internal Market of the European Commission, said that both the EU patent and the unified patent litigation system in Europe are "not in the best shape"; see the report in the VisaePatentes Blog. Mr Joff Wild in the IAM Blog went one step further and wrote that the EU patent is dead in the water.

In this situation, Mr Gaster today traveled to Munich and, again organised by GRUR on the premises of the German Patent and Trade Mark Office, gave a lecture on the state of the affairs concerning the EU patent reform.

Ms Neelie Kroes, European Commission Vice-President for the Digital Agenda

On June 10, 2010, Ms Neelie Kroes, European Commission Vice-President for the Digital Agenda, gave an address at the Open Forum Europe 2010 Summit on 'Openness at the heart of the EU Digital Agenda' in Brussels.

Exactly two years ago, Ms Kroes already had given another speech on interoperability. Key points were:

• Interoperability boosts competition and we need more of that.
• For devices or applications to be interoperable - to work together - all concerned parties must agree to a common way of "doing things".
• Formal standards are one way to get there.
• More transparency in formal standard-setting can lead to more efficient outcomes.
• Public and private procurers of technology should be smart and build their systems as much as possible on standards that everybody can use and implement without constraints: this is good for the bottom-line because it promotes competition between suppliers and prevents vendor lock-in.

Ms Kroes also has been in charge for the Final Report On Competition Inquiry into the Pharmaceutical Sector. Maybe some individuals might think that se might be a bit biased against the patent system.

In her recent speech, Ms Kroes stressed that she sees herself as a big fan of open standards. She said she believe in openness, and she believes in practising what one preaches. According to Ms Kroes,