The Unitary Patent and Unified Patent Court: new survey seeks responses

Nick Cunningham (Wragge Lawrence Graham & Co.) has written to tell us that his firm is running a survey to try to find out what patent owners and their advisers are planning to do about the Unified Patent Court, and whether they think it is a worthwhile development (something we've all been speculating about). Adds Nick:

"We would like to get as wide a response as possible, so I was hoping that you might be able to mention it in a posting".

PatLit is always pleased to oblige. Wragge Lawrence Graham & Co's Survey on the Unitary Patent and Unified Patent Court can be accessed at https://www.surveymonkey.com/s/unitarypatentsurvey and it should not take more than 10 minutes of your time. The questions are designed to be answered by respondents from outside as well as inside the UK and, while the organisers expect to be closing the survey in mid-June, there is no formal closing date.

Come to Bournemouth! Free public lecture on the unitary patent and the UPC

Next week, on Thursday, 19 February, there's a public lecture that should appeal to anyone who is interested in patent litigation and is not too far from England's south coast. The title is "The Unitary Patent and the Unified Patent Court: a private international law perspective" and the speaker is the excellent Professor Paul Torremans (University of Nottingham, which is a long, long way from the seaside).

The lecture takes place in Bournemouth University; it's free -- but space is limited. Details and registration can be accessed here.

Spanish challenge to new European regime: is the Court of Justice failing to engage with the issues?

German attorney and Certified Specialist for IP Law Ingve Stjerna has written a further analysis of the current judicial scrutiny of the European Union's proposed (but not yet operative) new regime for patents.  It's "Unitary patent“ and court system – Advocate General’s Statements of Position: Superseded by reality" and you can access it via Ingve's website here.  Focusing on the Advocate General's Opinion in Case C-146/13 Spain v Parliament and Council [which, astonishingly, is still not available in English] and the implications of the most recent events at the EPO, Ingve sets the scene as follows:

On 18 November 2014, Advocate General Yves Bot‘s Statements of Position in the Spanish nullity proceedings against the two Regulations on the “unitary patent” were published, his recommendations to the Court being a rejection of the actions. Once again, the legal issues are subordinated to the political interest in the implementation of the “patent package”, however, based on a widely not very convincing argumentation. Especially the Statement in case C-146/13 largely tries to avoid any contextual debate of the critical aspects raised, e. g. in relation to the adequacy of legal protection at the European Patent Office, while contradictions and misunderstandings occur repeatedly. Not least in view of the recent events at the European Patent Office, culminating in the suspension of a Boards of Appeal member by the President, the question arises to what extent the Statements of Position can form a suitable basis for the Court’s decision at all.

Ingve's conclusion is as follows:

The presented Opinions are not convincing. When comparing them to the Opinion from proceedings 1/09, which addressed the existing problems in all their clarity, they rather seem to endeavor avoiding any confrontation with the controversial issues and to seek to easiest way to come to a rejection of the complaints. The impression arises that it is sought to achieve a predefined result, without having well-founded arguments supporting it. This may imply that a serious discussion of subject matter is possibly not wanted, because all the institutions involved anyhow wish to nod the package through.

One decisive aspect will be whether, despite the neglect in dealing with this issue in the Opinion, the CJEU will be prepared to tackle the situation at the EPO. Should they avoid this or not deal with it exhaustively, the focus will shift to the national Constitutional Courts for this examination, especially to the German BVerfG due to its mentioned powers to review ratification statutes. Since ratification by Germany is obligatory for the UPCA to enter into force, a veto by the BVerfG would stop the whole project. Already for this reason, it will be interesting to see how the CJEU will deal with Spain’s actions. Its judgments should be given in spring 2015.

PatLit looks forward to reading Ingve's comments when the CJEU finally gives its decision.

ERA unitary patent event to focus on the Rules

There's an ERA conference coming up soon which should be of considerable interest to readers of this weblog. On 25 and 26 November 2013: "Latest Developments on the EU Unitary Patent" takes place in Brussels, the political capital of Belgium and the eating capital of the European Union, so far as this blogger can see. Anyway, concerning this event:

"The public consultation on the Rules of procedure for the Unified Patent Court (UPC) was closed on 1 October 2013. The Drafting Committee will now evaluate the written contributions and prepare proposals on the Rules of procedure. This conference will offer an update on the legal developments regarding introduction of the Unitary Patent in the EU, and give practical recommendations on litigation strategies".

Participants are Paul van Beukering (Chairman of the Unified Patent Court (UPC) Preparatory Committee), Penny Gilbert (Powell Gilbert LLP),  Klaus Grabinski Drafting Committee on the Rules of Procedure for the UPC; Bundesgerichtshof judge); Willem Hoyng (Drafting Committee on the Rules of Procedure for the UPC), Johannes Karcher (Coordinator, Legal Framework Working Group of the UPC Preparatory Committee), Christof Keussen (Glawe Delfs Molle), Winfried Tilmann (Drafting Committee on the Rules of Procedure for the UPC), Bettina Wanner (Bayer Intellectual Property GmbH), Karen Vandekerckhove (DG Justice, European Commission) and Eskil Waage (International Legal Affairs, PCT European Patent Office).

For further information and registration details, just click here and all will be revealed.

Unitary patent: discussion to resume this autumn

No more Parliamentary discussion
till the leaves begin to fall ...

Micaela Modiano (Modiano & Partners) has kindly forwarded to PatLit this link to the press release relating to yesterday's meeting of the Legal Affairs Committee of the European Parliament regarding the proposal to delete certain articles of the draft regulation on the creation of the unitary patent so as to avoid certain referrals to the Court of Justice of the European Union.

 As Micaela observes, the outcome is that "The committee will discuss the issue with Parliament's legal service again after the summer recess, possibly in September" -- a further delay.

PatLit is of the opinion that each delay, postponement and rethink is most likely to result in more focused thinking on the problems which the proposed solutions appear to be causing.  It's just a pity that the early stages were, relatively speaking, so rushed and that they paid so little attention to the accumulated experience of a large number of practitioners.

Who is defending the Spanish opposition to the drafted Unitary Patent?

In a comment posted yesterday in “Unitary Patent: the Spanish view”, Steve Peers was wondering “if the Spanish government's position might change if the opposition party wins the forthcoming elections - as seems highly likely”.

What we know is that up to date the Spanish opposition to the suggested Unitary Patent was jointly defended at the European Parliament by both PP (opposition party in Spain today) and PSOE (party still in the Spanish Government).

As we can read at the European Parliament web page (here), during the meeting of the extraordinary meeting of the Legal Affairs committee held on January 20, 2011, Mr Antonio López-Istúriz (PP) held:

“I know that Commissioner Barnier is making a lot of effort, this is a hope for us to take greater advantage of the Single market. It is a Single market for all when it comes to the language issue we have had a very balanced report by Ms Palacio, there was no problem with the language issue, but when it comes to the process of enhanced cooperation we are left with the impression that we are adopting a number of issues which are changing the rules of the game and that includes the language issue”

At that same meeting, Mr. Antonio Masip (PSOE) held:

"We must be cautious, serene and we must have a common sense and that is something that can be demanded as legal experts. In this regard a few years ago Ana Palacio proposed 5 languages, so and why are 3 put forward now? Why have 2 been cut out? That makes no sense!"

On February 16, Mr López-Istúriz made reference in his personal Blog to the position maintained at the EP (here) (in Spanish):

“The popular deputies are going to support [the Government] in this endeavor because it is in the collective interest of Spanish citizens and companies”.

In the Amendments dated January 21, 2011 (here), we see that Mr López-Istúriz and Mr Masip jointly appear in Amendments 1, 3, 5, 7, 9, 14, 15, 17, 19, 21, 25, 27 & 28.

Will their position change when/if PP wins the forthcoming elections?


Unfortunately my crystal ball needs to be repaired and Spanish political parties have not yet disclosed their Programs. They may do it in the next days and I will report if any reference to the Unitary Patent is included.

Unitary Patent: the Spanish view

In an interview published last week, Mr. Alberto Casado, Director of the Spanish Patent and Trademark Office, has insisted in the arguments for the Spanish opposition:

“The Spanish position is favorable to have a Community patent and a European unified jurisdiction for patents. Therefore, we do not obstacle moving towards a single legal instrument; what is basically making it difficult for us is the model that the Commission and most member states are adopting and, especially, the fact which discriminates the Spanish language, both at the Community patent and the jurisdiction”.

Mr. Casado criticizes that the Unified Patent Court, as actually designed, “contemplates the possibility of technical judges who are not legally trained”. Appointing technical judges has recently been questioned by the European Patent Lawyers' Association in its Resolution on the Draft Agreement 13751/11 of September 2, 2011, posted two weeks ago in PatLit (here).

Furthermore, Mr. Casado claims that “appointing an specific judge for an specific action would go against our judicial security Constitutional principle”.

Full text, in Spanish, can be read here

Unitary patent "would advantage the English, French and Germans"

"The EU Embraces Enhanced Cooperation in Patent Matters: Towards a Unitary Patent Protection System" is a recent article by Enrico Bonadio (City University London; The City Law School of City University, London). It has been published in issue 3/2011 of the European Journal of Risk Regulation and is now available in full on SSRN here. According to Enrico's abstract:

"On 13 April 2011 the Commission tabled a package of two legislative proposals implementing enhanced cooperation in the field of unitary patent protection and translation arrangements. Such proposals were subsequently agreed upon by the EU ministers in an Extraordinary Competitiveness Council on 27 June 2011. 

The objective of this regulatory move is to offer innovators in Europe a unique patent right which can only be transferred, licensed, revoked or may lapse in all the Member States which participate in the enhanced cooperation. 

However, Spain and Italy have chosen to remain outside the enhanced cooperation system and challenged before the Court of Justice of the European Union (CJEU) the Council Decision of 10 March 2011 authorizing such cooperation. They point out inter alia that the envisaged system would advantage applicants coming from EU English, French or German speaking countries".

Readers are invited to peruse Enrico's piece, which is a refreshingly brief five sides of pdf, and let PatLit (and Enrico) know what they think of it.