BLOG@IPJUR.COM - EU

New Developments: European Patent With Unitary Effect, EU Patent Jurisdiction

nospam@example.com (Axel H Horns) — Sun, 29 May 2011 18:36:20 +0200

Under the date of May 26, 2011, the EU Council has published Document 10629/11 titled Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection including a Proposal for a Council Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements. The text is said to facilitate discussions on political orientation as well as an exchange of views.

As reported earlier on this Blog, on April 14, 2011, the European Commission had published Document COM(2011) 215/3 titled Proposal for a Regulation of the European Parliament an of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU. Meanwhile, the Mertens group has examined the proposals of the EU Commission on four occasions: on April 14, May 03, 10 May and May 19, 2011.The general gist of the deliberations was as follows:

"The delegations of the participating Member States unanimously argued in favour of rapid progress in the negotiations and advocated not to reopen issues where consensus was found during the Swedish Presidency and which were widely supported under the Belgian Presidency, in particular on the translation arrangements.
All delegations from the participating Member States expressed their general support for the Commission's proposals. The delegations of the two non-participating Member States were opposed and argued in favour of working towards a compromise between the 27 Member States."

Of course, those non-participating Member States are Italy and Spain.

However, despite the fact that the general outlines were agreed on, a number of issues were discovered which need to be resolved:

Continue reading "New Developments: European Patent With Unitary Effect, EU Patent Jurisdiction"

Some Preliminary Remarks On COM(2011) 287 Provisional

nospam@example.com (Axel H Horns) — Tue, 24 May 2011 18:53:46 +0200

Galaxy of IP rights ... as seen by EU Commission

Today the EU Commission has published a provisional version of Document COM(2011) 287 titled Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe. In its own words this Communication presents the Commission's overall strategic vision for delivering the true Single Market for intellectual property that is currently lacking in Europe – a European IPR regime that is fit for tomorrow's new economy, rewarding creative and inventive efforts, generating incentives for EU-based innovation and allowing cultural diversity to thrive by offering additional outlets for content in an open and competitive market.

Continue reading "Some Preliminary Remarks On COM(2011) 287 Provisional"

OHIM Set To Become Official Host For European Observatory On Counterfeiting And Piracy

nospam@example.com (Axel H Horns) — Tue, 24 May 2011 17:33:15 +0200

OHIM, Alicante (soon to be augmented into an enforcement agency)

Today, the EU Commission has published a Proposal for a Regulation of the European parliament and the Council on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy (COM(2011) 288).

In the paper, EU Commission proposes to entrust the Office for Harmonisation in the Internal Market with the tasks and activities relating to the management of the European Observatory on Counterfeiting and Piracy, including those concerning copyright, rights related to copyright and patents.

Continue reading "OHIM Set To Become Official Host For European Observatory On Counterfeiting And Piracy"

EU Commission: A Burst Of Activity Concerning Intellectual Property Politics

nospam@example.com (Axel H Horns) — Tue, 24 May 2011 16:14:25 +0200

Today, the EU Commission has adopted a strategy intended to to revamp the legal framework in which Intellectual Property Rights (IPR) operate.See also this Draft here.

The IPR Strategy sets out a series of short- and long-term key policy actions in various areas which include:

Patents: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470). Meanwhile, work will continue on proposals relating to the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business.
Trade marks: while trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2011 to modernise the trade mark system both at EU and national levels and adapt it to the Internet era.
Geographical indications (GIs): GIs secure a link between a product's quality and its geographical origin. However, there is currently no such system available at EU level for the protection of non-agricultural products such as Carrara marble or Solingen knives. This leads to an unlevel playing field in the Single Market. The Commission will therefore carry out an in-depth analysis of the existing legal framework in the Member States as well as the potential economic impact of protection for non-agricultural GIs in 2011 and 2012. Depending on the outcome of an impact assessment, these could eventually be followed up by legislative proposals.
Multi-territorial copyright licensing: While the substantive scope of copyright has been largely harmonised, rights are still licensed on a national basis. In view of the digital Single Market, streamlining copyright licensing and revenue distribution is one of the most important challenges that must be addressed. In the 2nd half of 2011, the Commission will submit a proposal to create a legal framework for the efficient multi-territorial collective management of copyright, in particular in the music sector. It will also establish common rules on the transparent governance and revenue distribution. In the second half of 2011, the Commission will also launch a consultation on the various issues related to the online distribution of audiovisual works.
Digital libraries: The creation of European digital libraries that preserve and disseminate Europe's rich cultural and intellectual heritage is key to the development of the knowledge economy. To facilitate this, the Commission is also tabling today a legislative proposal that will enable the digitisation and online availability of so-called "orphan works" (works like books and newspaper or magazine articles that are still protected by copyright but where the right holders are not known or cannot be located to obtain copyright permissions) – see MEMO/11/333. Concurrently, the Commission looks forward to concluding a Memorandum of Understanding amongst libraries, publishers, authors and collecting societies to facilitate licensing solutions to digitise and make available out-of-commerce books.
IPR violations: Counterfeiting and piracy are a growing threat for the economy. Between 2005 and 2009, the number of registered cases at the EU borders of goods suspected of infringing IPR increased from 26 704 to 43 572. Meanwhile, the creative industry estimates that piracy has cost the European music, movie, TV and software industry €10 billion and more than 185 000 jobs in 2008 alone. The Commission is set to intensify its efforts in this area. Firstly, the Commission has tabled a regulation today that is to reinforce the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This will allow the Observatory to benefit from OHIM's intellectual property expertise and strong record of delivery in trade marks and designs. The Regulation now passes to the European Parliament and the Council for consideration. Secondly, in Spring 2012, the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment.
IPR enforcement by customs: Customs supervise all trade crossing EU external borders: they carry out controls for many purposes and have an essential role in fighting the trade in IPR infringing goods. In 2009 only, customs intercepted over 40 000 suspect shipments involving 118 million articles. Whilst the majority of goods intercepted are counterfeit or pirated, customs' unique position at the border allows for the enforcement of a wide range of intellectual property rights. As part of today's overall IPR strategy, the Commission also proposes a new customs regulation, to further reinforce the legal framework for customs' actions. The proposal also aims to tackle the trade in small consignments of counterfeit goods sent by post as the overwhelming majority of these goods results from internet sales.

Also today, the EU Commission has released MEMO/11/332 on Intellectual Property Strategy – Frequently Asked Questions. Concerning Copyright, the EU Commission announces further steps as follows:

Continue reading "EU Commission: A Burst Of Activity Concerning Intellectual Property Politics"

Will There Be A "Virtual Schengen Border" Justified By Intellectual Property Enforcement?

nospam@example.com (Axel H Horns) — Thu, 19 May 2011 12:17:54 +0200

Michel Barnier, EU Commissioner for Internal Market and Services

Mr Michel Barnier is EU Commissioner for Internal Market and Services. The Commission department under his political responsibility is the Internal Market and Services Directorate General (DG MARKT). The Office for Harmonisation in the Internal Market (OHIM) falls also under his authority.

Now there are rumours that Mr Barnier is about to seek sweeping reform of intellectual property regime throughout Europe. Mr Ian Wishart today wrote on europeanvoice.com:

"The European Commission is set to announce a wide-ranging strategy on intellectual property rights (IPR) and to signal its belief that internet service providers (ISPs) should share more of the responsibility for halting illegal downloading. [...]"

An earlier report was published on euractiv.com on May 12, 2011:

"A draft of the EU's upcoming Intellectual Property Rights strategy, due out on 24 ~~April~~ [May], will reportedly announce upcoming amendments to existing EU law that 'should tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers'."

Continue reading "Will There Be A "Virtual Schengen Border" Justified By Intellectual Property Enforcement?"

EU Patent Is Dead! Long Live "European Patent With Unitary Effect."

nospam@example.com (Axel H Horns) — Thu, 14 Apr 2011 21:05:49 +0200

Recently the European Commission has published Document COM(2011) 215/3 titled Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL implementing enhanced cooperation in the area of the creation of unitary patent protection. Council Decision 2011/167/EU (March 22, 2011 - Official Journal of the European Union L 76/53) authorised the Member States listed in its Article 1 to establish enhanced cooperation in the area of the creation of unitary patent protection. Article 118 (1) TFEU provides for the legal basis for creating European intellectual property rights providing uniform protection throughout the Union by means of a regulation adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure.

Article 3
European patent with unitary effect
1. European patents granted with an identical scope of protection in respect of all participating Member States shall benefit from unitary effect in the participating Member States provided that their unitary effect has been registered in the Register for unitary patent protection referred to in Article 12(1)(b). European patents that were granted with different sets of claims for different participating Member States shall not benefit from unitary effect.
2. A European patent with unitary effect shall have a unitary character. It shall provide uniform protection and shall have equal effect in all participating Member States. Without prejudice to Article 5, a European patent with unitary effect may only be limited, licensed, transferred, revoked or lapse in respect of all the participating Member States.
3. The unitary effect of a European patent shall be deemed not to have arisen to the extent that the European patent has been revoked or limited.

The main trick of the proposed Regulation depends on the introduction of a so-called European patent with unitary effect. The unitary effect flag will be administered by the European Patent Office:

Continue reading "EU Patent Is Dead! Long Live "European Patent With Unitary Effect.""

EU Patent: The Smallest Of All Perceivable Solutions Is Coming

nospam@example.com (Axel H Horns) — Thu, 10 Mar 2011 16:59:25 +0100

The dice is cast: Yesterday, the Court of Justice of the EU issued a damning verdict to pending plans for creating a new trans-EU Patent Court on the basis of an international agreement. Today, the EU Council has nodded through a license for 25 of 27 EU Member States (i.e all Member States except Italy and Spain) to start negotiating on the particulars for an enhanced co-operation in order to create a, well ... not so unified EU Patent (because of it will spare out Italy and Spain).

As far as I have understood that matter the present state of affairs implies that most likely there will be no centralised court system for conflict resolving with regard to EU-2 patents emerging from the envisaged enhanced co-operation. The only way to do the full menue would be to make come true a real miracle: The 25 Member States now participating in the enhanced co-operation would have to agree on a hitherto un-sketched new Patent Court which is

strictly subordinate to the Court of Justice of the EU, and
compatible with the EU Treaties despite the fact that not all Member States are participating.

At the time being I do not have the slightest idea as to how to make such a thing technically working but, maybe, brighter minds in the EU Commission are already busily thinking and mooting (Hello Mr. Gaster, are you still involved?).

There are indications that the EU Commission is set to table a proposal for the particulars of the enhanced co-operation by March 30, 2011. Perhaps even more might happen: Reports say that Italy and Spain might go to Court to stop the enhanced co-operation (@mrentem).

The Court Of Justice Of The EU Kills Patent Court Proposal.

nospam@example.com (Axel H Horns) — Wed, 09 Mar 2011 16:06:25 +0100

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.

Continue reading "The Court Of Justice Of The EU Kills Patent Court Proposal."

EU Enhanced Co-Operation In Unitary Patent Matters To Be Voted In EU-Parliament

nospam@example.com (Axel H Horns) — Tue, 25 Jan 2011 13:34:00 +0100

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:

Continue reading "EU Enhanced Co-Operation In Unitary Patent Matters To Be Voted In EU-Parliament"

Long Live The EU Patent - But A New EU Patent Court System Is Dead?

nospam@example.com (Axel H Horns) — Wed, 15 Dec 2010 22:59:00 +0100

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:

Continue reading "Long Live The EU Patent - But A New EU Patent Court System Is Dead?"

BREAKING: 'Small' EU Patent To Come Soon

nospam@example.com (Axel H Horns) — Fri, 10 Dec 2010 16:40:43 +0100

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.

Will There Ever Be Unanimity On An EU Patent?

nospam@example.com (Axel H Horns) — Thu, 18 Nov 2010 20:26:35 +0100

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:

Continue reading "Will There Ever Be Unanimity On An EU Patent?"

Spanish Government Knocking Down Compromise On EU Patent Languages Regime

nospam@example.com (Axel H Horns) — Wed, 10 Nov 2010 23:14:00 +0100

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.

Yet Another Approach To Reach EU Patent Compromise

nospam@example.com (Axel H Horns) — Tue, 09 Nov 2010 18:32:00 +0100

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.

Continue reading "Yet Another Approach To Reach EU Patent Compromise"

EU Patent: Italy Joining Spain In Fight Against Three-Languages-Regime

nospam@example.com (Axel H Horns) — Mon, 11 Oct 2010 12:23:55 +0200

Further to my yesterday's posting I would like to point to an article published today on EurActiv saying that the Belgian EU Presidency will try to narrow the distance between national delegations on the long-standing issue of languages and translations during a meeting of EU ministers starting today in Luxembourg.

According to this report, the Italian Government has joined the Spanish in order to fight for inclusion of their own languages or, as some sort of compensation, to obtain abolishment of mandatory translations into German and French.

This would mean an English-only solution.