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Removing sections from unitary patent plans would make the framework illegal, MEP claims

EU leaders' plans to change draft laws that would establish a new unitary patent framework would breach EU law, an MEP has said.13 Jul 2012

Bernhard Rapkay said that EU ministers had already agreed on a package of measures around the establishment of a new unitary patent regime and that changes to that agreement suggested by EU leaders in the European Council would make the proposed regime rules "not effective at all." He said the European Parliament would "stick to the agreement" and if EU ministers failed to back it then it would be their "fault" if it meant unitary patent protection did not become reality.

Rapkay is tasked with obtaining the approval of the European Parliament to the draft unitary patent laws. He helped negotiate the wording of the laws on behalf of the Parliament last year.

Plans to allow inventors to gain unitary patent protection and enforcement across the EU have been under negotiation for years but in recent months 25 EU countries have moved closer to establishing a new framework around how that system would operate. If introduced, inventors would only have to apply once in order to obtain patent protection across the 25 countries, if their application was approved.

In December last year the European Parliament and the Council of Ministers formed an agreement on a package of measures aimed at establishing the new framework.

The package included regulations specifying the technical details of the patent system itself, the language regime to be used in unitary patent applications and approvals and the establishment of procedures for the operation of a unified patent court. However, full consensus on the issue of where the "central divisional" unitary patent court should be located has proved to be a barrier to this.

Earlier this month, though, the European Council agreed on a compromise. It backed plans that would see the functions of the central divisional court split, with disputes over unitary patents related to chemistry, including in pharmaceutical products, overseen in London. A seat in Munich would deal with "mechanical engineering" issues and all other central divisional unitary patent court disputes would be dealt with in Paris.

The Council also suggested that three sections of the draft law on unitary patents be deleted. Those sections detail what would constitute a direct or indirect infringement of a unitary patent as well as what limits would apply to the rights conferred by a unitary patent.

However, Rapkay said that deleting those provisions would mean there was "nothing left to regulate". The European Parliament's legal services department supports his view and has said that "the essence of the regulation" would be affected by any deletion of the provisions and would be incompatible with EU law. A statement from the European Parliament said that the effect of deleting those provisions would mean that "the competence of the European Court of Justice in patent litigation cases would be considerably reduced."

Under the proposals for the operation of a unitary patent court system cases concerning the validity or infringement of proposed new unitary patents would be heard by local, regional and central divisional courts. Unitary patent courts would be able to refer questions about cases to the European Court of Justice (ECJ) to help determine their outcome - extending the jurisdiction of the ECJ into patent law in the process.

Under the Treaty on the Functioning of the European Union (TFEU) the European Parliament and the Council of Ministers must "establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements."

Last year the ECJ forced unitary patent regime negotiators to rethink their plans after stating that a proposed pan-European Patent Court for ruling on unitary patent disputes would contravene EU laws. The Court would exist outside of the judicial structures already in place and so would leave citizens potentially without recourse to action though existing EU courts, the ECJ said at the time.

Both the Council of Ministers and the European Parliament must approve EU legislation before it can come into force.

The European Parliament delayed voting on the proposed package of measures for the planned unitary patent regime whilst the detail of the issue over the location of the central divisional unitary patent court was determined. The Parliament said its Legal Affairs Committee will "discuss the issue with Parliament's legal service again after the summer recess, possibly in September."

The European Council is an official EU body that gathers leaders of member states and the European Commission to determine general political policies and priorities for the trading bloc. It is different from the EU's Council of Ministers which is made up of 27 ministers representing each EU state. The subject matter of discussions and votes determines which ministers from member states represent the Council of Ministers.

The Council of Ministers said that it was "committed to achieving a first-reading agreement as soon as possible" and that the EU "cannot lose this opportunity after so many years."

Europe-wide patent protection is only possible at the moment by validating a patent registered with the European Patent Office (EPO) in each individual country.