As reported here, plans for a Unified EU Patent and Unified Patents Court hit yet another stumbling block earlier this year when the European Parliament refused to vote on the draft regulations as then proposed by the EU Council.
One of the main issues of contention was the inclusion or otherwise of Articles 6-8 of the draft Unitary Patent Regulation, relating to the criteria for infringement of European patents.
It was feared that inclusion of these articles in the Regulation would have brought questions of substantive patent law under the jurisdiction of the Court of Justice of the EU (CJEU), which was considered to be highly undesirable given their lack of any specialist expertise. However, the European Parliament was not prepared to accept the deletion of these Articles, as had been suggested by the European Council, which led to the most recent stalemate.
A new version of the regulation has now been proposed by Cyprus, who currently hold the EU Presidency. This version has been agreed by the Member States’ representatives and is widely expected to have the backing of MEPs when it is put to the vote, possibly as early as December.
The exact text of the agreed regulation has not officially been made public, but leaked versions suggest that the controversial Articles have been removed from the Unitary Patent Regulation and have been moved to the Unified Patent Court Agreement.
In their place new Article 5 of the Unitary Patent Regulation, relating to the protection conferred by the Unitary Patent, now refers to the provisions of national law in the relevant Member State.
The EU Commission have said that the compromise text will “ensure a harmonised protection of patents throughout the 25 participating member states”. However, critics have expressed concern about the possible fragmentation of the system which could result from the application of different national laws, depending on the domicile of the patentee.
If MEPs agree to the Council's latest compromise text, the regulations could be adopted by the Parliament on 21 December 2012 and an inter-governmental agreement, to create the patents court, could be signed on 18 February 2013. Ratification of this agreement would then be necessary before the unitary patent system can actually come into effect, but the European Commission hopes that the first unitary patents could be granted by April 2014.
The press release from the Cypriot Presidency can be found here.