Monday, 20 July 2015

Unitary patent: Mandatory ratification United Kingdom, Germany and France on course


At the Unitary Patent & Unified Patent Court 2015 at the EPO in Munich some good news was given on the ratification progress of the 'mandatory' states: United Kingdom, Germany and France (Kluwer reported).

For the United Kingdom there is the uncertainty of the 'in-out' referendum scheduled for 2017 that will decide on the UK's membership to the EU. Interestingly, if the UK leaves the EU after ratifying the Agreement on a unified patent court, there seems to be little danger to the unitary patent. (Well, no other danger than suffering the loss of a major EU economy, that is.) Fortunately, the ratification process in the UK should be finalized in 2016.

Germany will start the parliamentary ratification process after the summer recess. As France has already ratified, it seems the big three are well under way to ratify the agreement.

Beside these three countries, ten more countries need to ratify the agreement before the unitary patent will start. Six countries have already done so, and it seems that the required additional four will follow.

All in all, it is starting to look more likely that the required ratifications will be complete in 2016. Four months thereafter the unitary patent system starts. This means we are looking at a start in 2017.

Photo "On Course" by Abhijeet Rane obtained via Flickr under CC BY 2.0 license (no changes made).

Wednesday, 15 July 2015

Notification letter Italy availabe



As reported earlier Italy has asked to join the unitary patent. I've asked European council to send me the content of the notification letter and they have kindly done so. We have made the letter available here. (The notification letter itself is not online only a summary.)
There are no great surprises in the letter. The opening section is as follows:

 I wish to inform you that the Italian government has further examined all legal and institutional issues regarding Regulation No 1257/2012 of the European Parliament and of the Council of 17 December 2012, implementing enhanced cooperation for the creation of unitary patent protection, and Council regulation (EU) No 1260/2012 of 17 December 2012, implementing enhanced cooperation for the creation of unitary patent protection with regard to the applicable translation regime.

I'm surprised the Council decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (2011/167/EU) is not mentioned. This document contains a list of all participating member states, a list from which Spain and Italy are absent.
The letter continues:


On the basis of this thorough evaluation, Italy has determined to request participation in the enhanced cooperation for the creation of unitary patent protection, pursuant to Article 331 of the Treaty on the Functioning of the European Union.



Article 331 of the Treaty on the Functioning of the European Union regulates how an EU state can request ascension to enhanced cooperation.


According to article 331 any Member State that wishes to participate in enhanced cooperation in progress shall notify its intention to the Council and the Commission. The first notification is linked above. I'm assuming the commission received a similar letter.

Within four month of receiving this notification the Commission will confirm the participation of Italy. The Commission can adopt transitional measures if that is necessary with regard to the application of the acts already adopted. Since the unitary patent system has not yet started, I do not expect such transitional measures.

The last section of the letter reads:

The accession to enhanced cooperation on the European Patent does not prejudge Italy's well established position on the EU language regime and does not constitute a precedent.
Italy together with Spain challenged the legality of the enhanced cooperation (joined Cases C-274/11 and C–295/11). The unitary patent has more or less adopted the current language regime of the European Patent Office. This system favors English, German and French. Both Italy and Spain are unhappy with this decision. Italy argued that the enhanced cooperation was a ploy to derive Italy of its right to oppose the language arrangements. Moreover, they argued that the enhanced cooperation would distort competition by favoring undertakings working in English, French or German.

However these arguments were rejected in 2013. A second challenge by Spain without Italy was rejected about two months ago. Apparently, Italy had waited until this decision with joining the unitary patent.

Personally, I'm very glad that Italy has made this decision. A unitary patent is a lot less attractive when both the fourth (Italy) and fifth (Spain) EU economy are absent. Currently, it looks likely that from the ten largest EU economies, 8 will participate; Spain and Poland being the outliers.

Photo "Cappuccino Loves Italy" by roevin | Urban Capture obtained via Flickr under CC BY 2.0 license (no changes made).






Tuesday, 14 July 2015

Netherlands making plans for local division unified patent court


I've just heard that the Dutch government has decided to have a local division of the unified patent court in the Netherlands. 


About two months ago an Internet consultation was started on proposed revisions to the Dutch patent law. The revision of the patent law would be adopted together with ratification of the Agreement on a unified patent court by the Netherlands. The Internet consultation did not give any indication whether or not the Netherlands would have its own local division of the unified patent court. 

Until now, there seemed to be a real possibility that the Netherlands would not have its own court. This would mean that all unitary patent disputes involving Dutch companies would go to foreign courts. Moreover, in due course, after the transitory period all European patent disputes would be handled by the unified patent court. 


In an interview with the Dutch newspaper 'Financieele Dagblad' of June 1, 2015, Hoyng a leading Dutch patent litigator remarked about the lack of a Dutch local division
That is very disappointing. The Netherlands should be leading with a European patent court, especially now we are always boasting about innovation. Germany is already busy promoting its court. We are in danger of losing the battle.
However, it seems now that the Dutch government will have a local division after all. I think this is good news. Although any one of the divisions of the unified patent court can rule over infringement in the Netherlands (as long as jurisdiction rules are satisfied) it is still good if local companies, especially smaller companies, have easier access to a judge when there is local infringement.


Foto "court of justice" van Edwin van Buuringen verkregen via Flickr onder een CC-By 2.0 licentie  (foto is ongewijzigd).

Monday, 13 July 2015

Italy asks EU: Can we join unitary patent?


Italy has sent notification to the EU of "its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection and in the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements".

The department for European affairs has a statement on its website. In our translation:

This morning I wrote to the Commissioner for the internal market, industry, entrepreneurship and SMEs, Elżbieta Bienkowska, and the presidency of Luxembourg announcing the Italian decision to join the European Union unitary patent.

What we have taken is a necessary and useful choice for Italian companies, that does not affect our position determined to defend the role of the Italian language in the European institutions.

Italy and the European Union need innovation to restart and I think this is a step in the right direction.

Until now Italy was the only country in the curious position that it had signed the Agreement on a unified patent court, but was not a party to the EU regulations on the unitary patent. In other words, Italy could have a court with the power the rule over unitary patents, even though those patents would not be valid in Italy.

Italy has now asked the EU to be counted in in the 'enhanced cooperation'.  As I remarked before any EU state can join the enhanced cooperation (Article 20 of the European Union Treaty). This means that it is virtually certain that Italy will join the unitary patent.

For unitary patents to be valid in Italy it is also needed that Italy ratifies the Agreement on a unified patent court. Given the fact that they have asked to join the unitary patent it seems highly likely that they will do so.  Thus it seems likely that unitary patent will be valid in Italy also.

After Italy there are two more countries that are not party to the EU regulations (Spain and Croatia). They could make the same move as Italy, though in case of Spain this seems unlikely. Interestingly if Croatia joins, patents that were filed before 2008 become ineligible for unitary effect. Should Croatia join after the unitary patent started we have the legal situation in which older patent applications retroactively loose eligibility for unitary effect.
 
Some countries who are party to the enhanced cooperation have announced that they will not ratify the Agreement (Poland). In practice this will amount to the same thing (unitary patents will not be valid, the unified court will have no jurisdiction).

Photo "Italy" by Moyan Brenn obtained via Flickr under CC BY 2.0 license (no changes made).