Points of principle: the Unitary Patent package

The turn of the year signalled an end to the Polish Presidency of the Council of the EU and its chances of creating a unitary patent and patent court in Europe. The “last outstanding issue in the patent package” is the location of the central seat of the Unitary Patent Court (UPC).

But the participating member states (all EU member states except Italy and Spain) are aiming to come to a final agreement on this by June 2012 at the latest, which is the end of the current Danish Presidency of the Council of the EU 2012.

The unitary patent package, which consists of agreements that provide for unitary patent protection, a unified litigation system and translation arrangements, is a complicated affair. Consensus on the previously tricky aspects, such as the Court of Justice for the EU’s (CJEU’s) role in any unitary patent litigation system and the translation arrangements, has been reached.

However, IP professionals, associations and owners in Europe and elsewhere continue to voice concerns about the package’s substance.

Crystal clear

The Danish Presidency is keen to overcome the issue of the location of the UPC’s central division. Jakob Alvi, spokesperson for the Danish Presidency, says “the mandate we have is very clear” and adopting unitary patent reform is a “high priority”.

This is because it will be major step forward in strengthening the competitiveness of European businesses and a sign that the EU is taking concrete steps towards boosting growth in a difficult financial climate, he adds.

During a press briefing Benoît Battistelli, president of the European Patent Offi ce, said that the central division of the UPC should be “located where there is the best professional environment”. He added that the location should have “a good balance between compliance and proximity”.

“IT IS IMPORTANT TO LIMIT THE PRACTICE OF CONSIDERING PATENT INFRINGEMENT AS SEPARATE FROM VALIDITY DURING LITIGATION BECAUSE IT ‘TILTS THE BALANCE IN FAVOUR OF THE PATENTEE’.”

But Tim Roberts, president of the Chartered Institute of Patent Attorneys, says that it is important to limit the practice of considering patent infringement as separate from validity during litigation because it “tilts the balance in favour of the patentee”. As a result, the central division should not be located in a country that is accustomed to such a practice, such as Germany. He adds that “ideally it should be in the UK”.

The Danish Presidency is working on the issue. “I hope time will provide the right flexibility for the involved member states to actually move on this,” Alvi explains. “It’s probably not something that’s going to happen this week or next week, but ... most likely in the second half of the Danish Presidency.”

Problem solved?

Other elements of the unitary patent package are still under fire, particularly from leading IP professionals and associations. Former Lord Justice Sir Robin Jacob, who was until recently a member of the English Court of Appeal, is “confident that it would not deliver on its promises”. Roberts agrees, adding that “we should not change from the current system until we are confi dent that the new system will work better”.

The current system of applying for a European patent at the EPO and designating the European countries in which it should be valid is not good enough, according to Jonathan Zuck, president of the Association for Competitive Technology, which promotes the interests of small and medium-sized enterprises (SMEs) in the technology industry.

He says that the European patent has been “too expensive and too complicated for small businesses in Europe”. While the system that will be created by the unitary patent package may not suit everyone, it is important that the European patent system is reformed sooner rather than later.

“I don’t want to promise that suddenly everyone will be using the new system. The change will be incremental,” Zuck adds. “We are certain that this is a huge step in the right direction: towards an environment that is friendlier to SME innovators.”

The Danish Presidency is clear that it considers the location of the UPC’s central division to be the only outstanding issue. Alvi says: “Of course, nothing is agreed until everything is agreed, but everything but the seat is agreed on in principle. We’re not expecting to open up the entire package again.”

Yet the unitary patent package still has problems, according to Jacobs and Roberts. They both agree that the CJEU should have no involvement in European patent law. Roberts says that the jurisdiction of the CJEU should be “abrogated” because it is “not suited to deal with specialist IP law”.

Jacobs adds: “Arts 6-8 should be deleted from the [unitary patent package] to ensure that the CJEU does not become the arbiter of substantial patent law. If it did I am confi dent that European patent law would become more and more uncertain, as well as having unacceptable delays in the court process.”

In Europe, it is full steam ahead on the unitary patent package as far as the Danish Presidency is concerned, but doubts remain. Detractors are concentrating on the unitary litigation system in particular, so EU legislators can expect to be pressured into changing that part of the package until it is either fully agreed, or the June 2012 deadline passes and the unitary patent package becomes yet another presidency’s responsibility.