EU

In an earlier posting I had reported on the  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) was July 02, 2010; however, the Opinion had not been 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 had been posted on August 19, 2010, on EPLAW Patent Blog.

As I wrote in my earlier posting I won't ever understand those 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. Now the Court has continued this line of officially hiding this matter. Although the final Opinion on the Court was finalised yesterday, you won't find any papers concerning A 01/09 on the Curia website.

The  statement issued in the name of the Attorneys General of the Court had made clear that they were not opposed to the general layout of the proposed Patents Court (PC) to resolve certain classes of disputes between individuals; however, they raised their concerns concerning a number of details, including the envisaged language regime.

Normally it is custom that the final text approved by the Court does not differ much from the proposal of the Attorney General.

However, in this particular case, that rule of thumb did not work. The Court re-considered the basics of the proposal on the creation of a unified patent litigation system and issued a crushing statement.

The General Secretariat of the Council of the European Union has published Document 5635/11 conveying a Summary of the meeting of the Committee on Legal Affairs (JURI) of the European Parliament, held in Strasbourg on January 20, 2011. The meeting was chaired by Mr Lehne (EPP, DE). The beginning of the meeting was held in camera.

Point 5 on the agenda was devoted to the Proposal for a Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection (JURI/7/04915 2010/0384(NLE) COM(2010)0790; Rapporteur: Klaus-Heiner Lehne (PPE)).

The report goes as follows:

Today I was able to gain access to EU Commission Document COM(210) 790 final - kudos to @EUpexian on Twitter. The paper is titled Proposal for a Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection. It cumulates in a proposal for a Council decision as follows:

Article 1

Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom are hereby authorised to establish enhanced cooperation between themselves in the area of the creation of unitary patent protection, by applying the relevant provisions of the Treaties.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

For the Council

The President

Well, this appears to be quite brief a statement. In its explanatory section, the Document reads as follows:

I just spotted the above-pictured Tweet of Mr Vincent Van Quickenborne, Minister for enterprise and streamlining policy of Belgium.

The linked Document says:

"After more than 40 years breakthrough in realizing EU Patent supporters put their own unified EU patent patent system

Brussels, December 10, 2010 - In the European Council Competitiveness, today 11 Member States have expressed their agreement to cooperate for the realization of EU patent. The 11 countries - including France, Germany and Britain - like to implement as soon as possible a unified patent system so that companies can get at a reasonable cost an adequate protection of their knowledge available in all participating countries. [...]

At the European Council, 11 countries have today a request sent the European Commission on the basis of compromise proposals Belgian Presidency of the proceedings of the enhanced cooperation to get started. The Lisbon Treaty provides that if in a given case unanimity can not be found within a reasonable period of at least nine Member States may request addressed to the Commission for a private arrangement between themselves to work. The other Member States can always join later. This procedure is used only very exceptionally. Other examples were the Shengen Convention and the Euro, which does not once all Member States have participated, but afterwards many candidates joined. The Commission will now prepare a proposal for the treaty enhanced cooperation to formalize"

More details will follow.

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 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)

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.