A Never Ending Story, the Unified Patent Flaw

It looks as if the discussion never ends. Yes we paying again attention to the patent that should be a “unitary” patent. Well not unifying, that’s for sure. Politicians may give the impression they reached a “compromise” but the fact of the matter is that so many legal objections are being made that the outcome of what is now hailed as a “success” in fact is the biggest legal flop we have seen in a long time. Here is what happens.

What came out of the EU summit in June 2012 ended in a stalemate after the European Council had suggested to the European Parliament that articles 6 to 8 be removed from the draft Unitary Patent Regulation. These articles contain a material regulation of the rights flowing from the “unitary patent” and the limitations to it. The European Parliament, supported by its legal service had always defended these articles as an essential part of the Regulation without which the chosen legal basis, Art. 118(1) TFEU (“Treaty of the Functioning of the European Union”), would not be given and which, should the Regulation be based on it nonetheless, would then be open to nullification by the European Court of Justice.

The Cypriot Presidency of the Council now presented a compromise proposal. This suggests to remove the articles 6 to 8 from the Regulation and replace them with a new article 5a. However, this article only contains an abstract stipulating that the “unitary patent” shall provide the patentee a cease and desist claim which is “subject to applicable limitations”. As to the material requirements of this right and its limitations, reference is made to “external” legal sources, namely the unified patent court agreement and the national law of the participating member states.

Such approach has been deemed illegal in the past by Prof Tilmann, who himself takes part in the negotiations as an adviser to the EU, in a statement to the European Scrutiny Committee of the UK House of Commons in January 2012, concluding “There would have been a high risk that the Regulation would be declared null and void because wrongly based on Article 118 TFEU.” In the meeting of the Legal Affairs Committee on 26 November 2012, also the Legal Service of the Parliament expressed doubts as to the compatibility of the compromise solution with Art. 118(1) TFEU.

Thus, although the compromise of the Cypriot Presidency is highly doubtful, Council appear highly determined to nonetheless adopt it, obviously trying to obtain a result, however doubtful it may be, in order to avoid having to admit a further failure of the project. If this compromise is accepted, the legality of the “unitary patent” will be balancing on a knife’s edge.

A Dusseldorf based lawyer, Ingve Stjerna explains why.

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