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| The AmeriKat despondently looks away after her pawing at the scratchpost of unitary patent politics uncovered some unsettling news |
A few days ago the Council published this memo from the General Secretariat to the Jurist/Linguists Group which records that the group will hold a meeting on 26 January 2011 in order to finalize the texts of the Regulation for the creation of unitary patent protection. Although the memo seemed purely procedural by nature, upon further reflection its publication raised two questions for the AmeriKat – (1) where is the final text? and (2) if the stage has been reached whereby the group is finalizing translations of the final text, is all hope lost in respect of the amendments that are so desperately required?
A little bit of pawing around revealed the following:
• Where is the latest text of the Proposed Regulation? Besides the privileged few in Brussels, no-one has seen the consolidated version of the Regulation but, as previously reported here, the Proposed Regulation passed by the Legal Affairs Committee in December is identical to the proposed text that was agreed during Trialogue, opening the way for the text to be adopted on the nod at the first reading.
• On what and when is the European Parliament voting? It is these draft proposals (above) that will be subject to the plenary vote by the European Parliament during its session on 13-16 February 2011. However, this is only if the Council agrees on the seat of Central Division of the Unified Patent Court, which has been a sticking point for the UK and Germany.
• So what is going on with the seat of the Central Division? Today, at the meeting of the Committee of Permanent Representatives in the EU (COREPER), it is expected that UK Prime Minister David Cameron, President Sarkozy and Chancellor Merkel will meet to discuss and agree on the seat of the Central Division. If an agreement is reached, it is anticipated that the other Member States will fall in line with their decision. If there is no opposition from other Member States, COREPER could then inform the European Parliament that there is now an agreement in Council on the proposals on the whole package including the seat. Such notice from the Council would smooth the legislative road to the European Parliament’s vote in February, after which the Council would then adopt the proposals into European law.
• But what about the opposition to the Proposed Regulation? Despite Cecilia Wikstrom having been a hopeful light for the patent profession, it is understood that she voted against her own proposed amendments in respect of Articles 6 to 8. The net result is that most, if not all, political parties in the European Parliament will support and vote for the proposals during the February vote.
• Are any EU Ministers listening to the European patent community’s unanimous expert opinions? It seems not. With Ms Wikstrom having seemingly given up the fight there does not appear to be any MEPs who will fight to introduce the vital amendments to the proposals that are required to save the unitary patent system from the very fate it was meant to avoid (high costs, delay, uncertainty, etc). In order for amendments to be debated by the European Parliament, amendments must be tabled by either a political group or at least 40 MEPs (Rule 156.1 of the Parliamentary Rules of Procedure). Although the period to table amendments has not opened (and it depends on exactly what day the February vote is scheduled), it seems unlikely that any MEPs will table the amendments. The AmeriKat understands there may be some possibility of the Green Party tabling amendments, but it is believed that, even if they do, their amendments will not include the deletion of Articles 6 to 8 from the Proposed Regulation.
Where indeed is Italy?
• Where is Italy in all of this? The AmeriKat has today heard that Italy has sent a letter to the Danish Presidency expressing its desire to join the Unified Patent Court but only insofar as it deals with bundled patents (i.e. the current “old” European patents). However, she understands that, currently, Italy does not want to join the unitary patent. As anticipated by the Kat, Italy additionally expressed its interest in hosting the seat of the Unified Patent Court in Milan (see this document, a draft reply not yet available on the Council's website to this question from Matteo Salvini). Given that the argument on location is believed to really have centred on London, Paris and Munich, the AmeriKat very much doubts that Italy will have much hope in securing the seat -- especially since they currently want no part of the unitary patent protection element of the package. The AmeriKat is unsure what the position is vis-à-vis Spain.
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| Who from the IP Bar will be giving evidence to the Committee? |
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| The floor of the UK's House of Commons -soon to be the scene of the next unitary patent debate? |
The AmeriKat hopes, perhaps blindly, that with news of this procedure in the UK and the news of similar concerns in Denmark, that other national governmental committees and politicians will take the opportunity to examine the proposals, speak with their patent professionals and raise these issues with their MEPs. The Kat encourages readers to take up the baton with their national politicians and MEPs before the "last chance saloon" of the February vote.
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| The t-shirt the AmeriKat will be wearing should EU ministers continue to turn a blind eye to industry concern |
The AmeriKat therefore urges that EU ministers and national governments listen, for one last time (or for the first time it seems in some cases), to the patent profession - "Because otherwise, when your voters complain about the costs of enforcing patents in Europe and when investment in patent protection and enforcement in the EU dries up, you will only have yourselves to blame", she says.