Lehne on the unitary patent: deleting articles 6-8 is not acceptable
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Lehne on the unitary patent: deleting articles 6-8 is not acceptable

MEPs will not back a system of pan-European patent litigation that does not give the Court of Justice of the EU a role in deciding what constitutes infringement of a unitary patent, says Klaus-Heiner Lehne, chair of the Parliament’s Legal Affairs Committee

Last week senior European Commission official Kerstin Jorna told Managing IP she believed member states and MEPs were considering ways of compromising on the issue, which threatens to derail plans to introduce a unitary patent for Europe along with a system for litigating it.

Before Parliament’s summer recess, the Council of Ministers agreed to support the Commission’s proposals for a unitary patent package, but recommended that MEPs remove Articles 6 to 8 from the draft regulation. These articles explain what constitutes direct and indirect infringement of a unitary patent and the limits on rights conferred by the patent. The Court of Justice would be given the final say on how the articles would be interpreted.

MEPs responded angrily, accusing member states of reneging on an informal agreement on the content of the patent regulation that the two sides had reached in December.

Although Jorna suggested the two sides may be looking for a compromise solution, Lehne, who chairs the influential Legal Affairs Committee and is Parliament’s rapporteur on the unitary patent proposals, said MEPs would not support a plan to remove the articles.

“I do not want to speculate on the specifics of a possible compromise, but for me it is quite clear that a simple deletion of the Articles 6-8 will not be acceptable to the European Parliament,” he told Managing IP by email.

The Legal Affairs Committee is set to discuss the unitary patent at its meeting on October 11 but will not be taking a vote.

In principle, if Parliament votes in favour of a different text to that agreed by the Council, the file would have to go to a second reading, said Lehne, adding: “I would prefer if the Council would propose a workable compromise.”

The German MEP, who is a partner of law firm Taylor Wessing, declined to say whether he believed it preferable to reject the unitary package as a whole rather than have a system that does not give the EU’s highest court a role in interpreting the law governing it.

“What is important is that we find a solution which ensures that the patent regulation is in conformity to EU-law,” he said.

The latest draft agreement on a Unified Patent Court and draft Statute was published by the Cypriot presidency of the EU on Thursday. The main changes to the document reflect positions agreed by the Council of Ministers in June. The document will be discussed by a meeting of the Friends of the Presidency group on October 5.

You can read more about Klaus-Heiner Lehne in Managing IP's 2012 list of the 50 most influential people in IP.

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