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EU unitary patent court up for grabs: Paris looks like favourite

The EU Competitiveness Council will discuss the proposed agreement on a unified patent court in a closed session this Wednesday. Meanwhile, draft rules of procedure have been submitted to the European Commission

Discussions on the patent agreement are on the agenda for the first afternoon of the two-day meeting, which takes place in Brussels and involves the ministers for industry/innovation from all EU member states.

The Council’s deliberations are normally broadcast live. But Managing IP understands that the patent discussions will not be shown as they relate to an international agreement rather than EU legislation.

There will however be a press conference on Wednesday evening once the first day of discussions is finished.

The formal position of EU negotiators is that the location of the central division is the only issue to be resolved before the unitary patent and unified patent court can be agreed. If it can be decided before the end of June, the first unitary patents could be granted in spring 2014.

France, Germany and the UK are all seeking to host the central division. A Brussels source told Managing IP that the Danish EU presidency has been seeking a breakthrough “at the highest levels” and that work will intensify this week.

If a deal is not agreed at this meeting, there is one more opportunity under the Danish presidency at the European Council, where heads of government meet, on June 28 to 29.

Last month, Council President Herman Van Rompuy urgedheads of government “to show the necessary sense of compromise” on projects including the unitary patent. “This important file has been discussed for many years and we are now very close to a final deal, albeit only at 25 [Spain and Italy are not taking part]. This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council,” he wrote.

If a deal is not agreed by the end of June, the project may languish as the next presidency, Cyprus, is not expected to prioritise it.

While it is impossible to predict the outcome of negotiations, there are indications that Paris could emerge as the best compromise for the central division. Many member states are likely to oppose having it in Germany, partly because that is also the location of the headquarters of the European Patent Office, and partly because the court might encourage German-style bifurcation of disputes, which is seen as good for patent trolls.

Meanwhile, the UK is still viewed as an expensive jurisdiction, and is on the edge (geographically and politically) of the EU.

France has also made some of the running in developing the court. The French profession circulated a questionnaire on practical aspects, and the results of that are expected to be published in the next week. One source told Managing IP the response rate was surprisingly high, with many submissions in German and English, and that the findings would be “extremely useful”.

Concerns that French enthusiasm might not survive the change from President Sarkozy to President Hollande have also been alleviated. The new president mentioned innovation and patents in his campaign, and French sources say the government is being positive on the issue.

Draft rules of procedure finalised

Meanwhile, a group of lawyers and judges last week submitted a final proposal on the rules of procedure for the court to the European Commission. The draft incorporates suggestions made in 31 responses received from industry and professional bodies across the EU and runs to some 162 pages including edits.

The draft was prepared by a group comprising judges Klaus Grabinksi, Alice Pezard, Richard Arnold and Christopher Floyd (alternatively Colin Birss) and lawyers Pierre Veron, Kevin Mooney, Winfried Tillmann and Willem Hoyng.

If the ministers give the court the go ahead, the Commission is likely to circulate the draft for formal comments.

One person close to the negotiations told Managing IP the work on the rules is “90% there”. Another added: “The result is a compromise. Nobody is 100% happy but if they were that would be a problem for everyone else.”

The sceptics

Despite the progress, there is still scepticism in some quarters. The UK’s Chartered Institute of Patent Attorneys is urging its government not to sign the deal in its current form. “From an IP perspective, this is not a good deal,” CIPA President Tim Roberts said, adding that it needs a couple of years more work: “It is better that nothing is done than that it is rushed now.”

Roberts added that if the central division were located in the UK “it would be less of a disaster” as it would be less likely that patents would be found to be infringed before their validity has been tested.

Asked whether basing it in Paris would be adequate, he said: “We don’t think this would give you as good a prospect of getting things done as quickly as the UK could.”

Roberts said he believed the UK “realises this is not an ideal outcome” due to the flaws in what is proposed. The government might yet block an agreement, he said. But another close observer argued that it might prove an opportunity for the UK coalition government (which includes the pro-EU Liberal Democrat party) to make a gesture towards Euro-enthusiasts without a big political sacrifice.

Whatever your view on the merits of the proposal, it now seems clear that the fate of the plan is in the hands of the politicians, rather than the patent professionals. And we will know within a month whether it will happen or not.

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