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MEPs set to back unitary patent compromise

A compromise proposal on the unitary patent package has won the support – hesitant if not wholehearted – of a key group of MEPs

On Monday night the European Parliament’s Legal Affairs committee discussed a proposal from the Cypriot presidency that is designed to resolve a standoff between member states and MEPs.

Managing IP understands that the compromise, which was approved unanimously by the Committee of Permanent Representatives (Coreper I), would see three controversial articles (Articles 6-8) taken out of the regulation governing the unitary patent and added to the Unitary Patent Court Agreement.

These articles explained what constitutes direct and indirect infringement of a unitary patent and the limits on rights conferred by the patent.

In a statement yesterday, the Cyprus presidency said the compromise proposal consisted of a new Article 5, “where the patent holder has the right to prevent third parties from acts against which the patent provides protection”.

This new text has not been published, but leaked versions seen by Managing IP suggest that the protected acts, and limitations, will be defined by the law in the member state whose national law is applicable to the unitary patent.

Managing IP understands that Bernard Rapkay, a rapporteur for the European parliament on the unitary patent, told the Legal Affairs Committee that he preferred the compromise reached by the Parliament and the Council in June but that he believed the new proposal did enough to move the debate on.

Although “this is a suboptimal compromise, (...) we could accept it”, since it matches the main requests put forward by Parliament, he said.

In particular, he said the new text seems to be compatible with EU law, respect the Court of Justice of the EU’s power to ensure consistent application of EU legislation and uphold the European Parliament’s rights to be involved in case there will be changes in the patent rules.

Most of the MEPs who spoke at the committee meeting supported the new proposal, while some stressed they would need more time to look into details. But the Greens/EFA group have said they are against the proposal.

“Several question still remain open”, said Greens/EFA coordinator Eva Lichtenberger. She argued that the deal does not provide legal certainty and “risks endless legal proceedings”.

The representative of Cyprus Council Presidency told the Committee that the proposal conforms with EU law and ensures the uniformity of patent protection. He also guaranteed that Council will approve the compromise with no changes.

That guarantee will be put to the test on December 10 when the Council is due to vote on the proposal.

All MEPs will get a chance to vote during a plenary session on the following day. If MEPs back the Council proposal it would mean the end of EU legislative procedure. The agreement on the unified patent court woudl then need to be ratified by 13 member states, including France, Germany and the UK, before it could come into effect.

That, of course, assumes that the Court of Justice will give its consent to the unitary patent package. It is now considering a request from Spain and Italy, which have opted out of the proposed system, to black further progress. The Advocate General is due to issue an opinion (also on December 11), with a ruling sometime next year.

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