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EU Commission’s Kerstin Jorna defends unitary patent proposal

Kerstin Jorna, the EU Commission official in charge of intellectual property, has told Managing IP that the debate over the proposed unitary patent package should be “de-dramatised”

“It is just an additional innovation tool in the toolbox of innovative companies,” she said. “No company is obliged to use it. They can use the European patent, as today. They can use national patents, as today, or they can refrain from using any patent.”

Kerstin Jorna, EU CommissionShe was speaking ahead of a meeting of heads of governments of member states later this month, during which they are set to decide whether to approve the package.

Many IP commentators believe that this will be the last chance they have to agree on the unitary package deal for months – if not years.

Two weeks ago Jochen Pagenberg, a former member of an EU Commission-appointed Expert Committee on the future patent court, wrote to the EU president, describing the unitary patent package as an “unworkable solution” that had been negotiated without proper transparency.

In an interview with Managing IP, Jorna acknowledged that the package could be improved. “There is always an aspiration to have something that is perfect,” she said. “But we believe that what we have is really very good.”

She added that she had researched the kinds of criticism that had been levelled more than 30 years ago at the European patent, granted by the newly established European Patent Office.

“People said ‘this will never work’, ‘How can you have an examiner from one country examining a patent from another?’ ‘There will be a couple of hundred filings a year’. Today we have 150,000 filings a year and the EPO has become something of a benchmark for IP offices.”

“In the end, it is a matter of trust. The bundle of patents is always an option. People will use the unitary patent when they trust it. Some people will trust it earlier, some will trust it later, and some may never trust it. But give it a chance. That’s really what we think. I understand the different criticisms and the desire to improve on what is on the table. But it’s a pretty good product.”

The block to an agreement on the deal centres on where the central court of the proposed litigation system should be located. France, the UK, Germany and the Netherlands are vying to host it in their own country.

Jorna denied speculation that other parts of the deal have yet to be agreed by member states, echoing statements made by officials from the Danish presidency of the EU last month that the seat of the court was the only outstanding issue.

First hurdle

If member states do manage to agree the unitary patent package this month, the Commission wants to grant the first patent under the new system in April 2014 – just before the May elections for the European Parliament.

“We think that is a real delivery for Europe and a showcase for it after 30 years’ work,” she said.

But she explained that reaching that goal requires a number if steps to be completed successfully.

The parliaments of 13 member states will need to ratify the deal by November next year. Before they will do that, she said, national politicians will want to know what the patent fees will be; the cost of the jurisdictional infrastructure; the fees for obtaining a decision from the court; and the rules of procedure to be used by it.

The rules will be adopted by the Administrative Council, which will have representatives from the 25 member states involved. Although the Council will be formally created only once the 13 ratifications have taken place, a Council-in-waiting will evaluate the results of a consultation on a draft set of rules that have now been finalised by a group of patent law specialists recruited for the task by the Commission.

Despite Jorna’s defence of the deal now on the table, she declined to reveal how likely she thinks it is that member states will agree the patent package later this month.

I am working hard, my team is and the Commission is. A lot of people are working hard to convince the heads of state that the moment is now and to give it a chance. I am fairly confident that the future will show that this is an essential tool for companies.”

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