Polish Presidency delivers failed EU Unitary Patent initiative

EPLAW, the European Patent Law Association is vehemently against the rickety proposal the Polish EU presidency put forward for the EU Unitary Patent Court. Its president,  Dr. Jochen Pagenberg, just posted a press release expressing EPLAW’s grave concerns:

“European industry, patent, judges and patent lawyers have become concerned about the latest developments in Brussels with respect to the proposal of the EU Commission and the Polish presidency concerning the European Unified Patent Court. While over the last four years the Commission and users had cooperated in preparing the different texts the project took a different turn during the last months. The Polish presidency presented a package consisting of two draft regulations [st11328/11] and a draft agreement [st16741/11]. Not only that major rules in these papers are not even finished, but what they contain has met with such vigorous criticism that 99% of the future users including the entire European industry have sent urgent warnings that they will never use the new court.

The European Patent Lawyers Association(EPLAW) participated in the discussions in Brussels with three of its former presidents as members of the Commission’s Expert Group until April 2011, together with five of the most experienced European patent judges and representatives of industry. Only during the last eight months, as a result of the Opinion of the ECJ which declared the first draft of the court agreement as incompatible with the EU Treaty amendments were made which were rejected unanimously by the experts from the beginning. In particular the text of the Regulation on the Unitary Patent was called a “deal breaker”, a broken promise concerning the role which the ECJ would play in future patent proceedings.

In spite of the opposition by industry the Polish presidency declared the discussion as closed and fixed a date for 22 December when the Member States are expected to initial the texts. The same unjustified haste occurred in the European Parliament where similarly texts were voted in the Legal Affairs Committee against the warning of the entire industry [Business Europe, International Chamber of Commerce of 14.11 and 25.11. 2011, American Chamber of Commerce Europe of 30.11.2011, Swedish Federation of Industry of 30.8. 2011, EFPIA of June 2011, IP Federation UK of 22.9.2011, Swedish Association for the Protection of Industrial Property Law of 31.8.2011.], judges and patent practitioners (Resolutions of EPLAW of 27.9.  and 29.10.2011, as well as the International Patent Judges Association (I.P.J.A.) of 2.11.2011)  who could all rely on detailed legal opinions of the academic world [Opinion of Prof. Rudolf Kraßer of 1.9./18.10.2100 and Prof. Robin Jacob of 2.11. 2011] .

Commission, Polish presidency and Parliament so far did not make the impression that they pay any attention to the users’ opinions. A member of the Legal Affairs Committee even publicly announced that these questions are not of a legal nature but are “entirely political” which can only be understood that Brussels and Strasbourg believe that political questions can be dealt with outside the legal order and that one just expects obedience by those concerned. This is particularly surprising, since the situation resembles the year 2003 when the Greek presidency tried to impose a Regulation for the Community Patent on the users. Industry opposed the Regulation and the Community Patent failed so that one had to start all over again.

On behalf of the European Patent Lawyers  Association I am attaching a Press Release. The documents cited above or any additional material will be sent to you on request.

Very truly yours
Dr. Jochen Pagenberg
President EPLAW (2009-2011) “

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