D-Day for EU Patent

Today and tomorrow the EU Competitiveness Council meets in Brussels under the current Polish Presidency.  On December 2, EPLAW had its Annual Congress in Brussels. Needless to say what the main topic was: will the European Unitary Patent ever come into existence? On September 27, 2011 EPLAW adopted a strongly worded resolution. The participants were taken by surprise on what happened the day before their December 2 conference started. An email was received from Ms. Cecilia Wikström referring to the discussions in the Legal Affairs Committee of the EP which had taken place some 10 days prior to the EPLAW annual meeting.  Jochen Pagenberg had just briefed all members of the European Parliament’s Legal Affairs Committee in charge of the “Patent Package”  (unitary patent, language regime and unified patent court) already a month earlier together with two EPLAW resolutions as well as the Venice Judges’ Resolution and the Krasser Opinion[1].

European Parliament member Cecilia Wikström is the only one defending the position of the users with very clear legal arguments, mentioning also the voices from industry and the users, and reminding her colleagues that those are the ones for whom this package is intended. She cited in her speech a quote by Jochen Pagenberg who cited one of his German clients: “If they want to kill the whole project, then they should indeed make substantive patent law part of the EU legal order”. Earlier on, the ICC submitted an urgent request to delete Art. 6-8 from the Regulation, in line what both EPLAW and the Venice judges already had advised to do. EPLAW believes that the present patent package is not only breaking all promises for quality, reduction of costs, efficiency and predictability, it is not even half finished (no cost rules, no procedural rules etc.). However as Ms. Wikstrom’s in her speech had predicted, the parliamentary Legal Affairs Comittee in all its wisdom, decided otherwise.

What went into the members’ minds to not follow recommendations and strong advises from the business community, patent practioners, judges and academics alike who advised not to insert art 6-8 (preventing the slow moving and insufficiently experienced and already overburdened ECJ as the highest patent court) into the final Regulation?

One cannot avoid thinking that this is the result of an incredible haste and superficial treatment of the project by the Polish presidency. If one cannot reach considerable improvements, one could only hope that the project fails like it did in 2003, how sad this might be (and how frustrating as well after decades of discussions). Better no EU patent than one that will not be used in practice due to its serious shortcomings.

[1] all documents can also be accessed on this blog, on the right side under: “EU Patent Documentation (EPLA, UPLS, EEUPC)” you will find the most recent documents related to the EU Patent

For an in-depth review of what happened recently on the EU Patent, we recommend reading  “Memo for Competitive Council Meeting on 5, 6 Dec 2011 names “Seat of the future Unified Patent Court” as Controversial Issue (UPDATE)”

Other IPEG blogs on the EU Patent:


Critical view on EU Patent legal aspects

Where do we stand with the European Unified Patent?

Is there Life after EU Patent Court Death?

European Court of Justice feels competition from EU Patent Court and rules against it

Update on EU Patent and European Patent Litigation

EU Council agrees on unitary patent, Enhanced Cooperation


EU Judges optimistic about European Patent Court

A new hurdle on the road to a EU patent?

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