Decision on EU's unitary patent law postponed by European Parliament

Doubts are raised whether it is legal to exclude the European Court of Justice from the new patent regulation

The European Parliament has postponed Wednesday's vote on a new patent law it drafted jointly with the European Council because on Friday the Council modified the text to limit the role of the European Court of Justice.

The proposed patent law is touted as a way to cut the cost for technology companies of protecting innovations across the whole European Union.

The heads of government of the European Union member states reached agreement on Friday to site the central division of the planned European Unified Patent Court in Paris, with specialized subdivisions in London and Munich, breaking a deadlock in negotiations over the last element of the new law. The heads of government, with the head of the European Commission, make up the European Council.

But the Council also decided on Friday to delete part of the draft law it had agreed with the European Parliament last December. Articles 6 to 8 contain provisions on direct and indirect infringement of patent rights, and allow the European Court of Justice (ECJ) to function as an appeals court within the scope of the patent law, a spokesman for the European Parliament said Tuesday.

The Council and the EP had agreed in December 2011 to approve the law as it then stood, but because the law was altered by the Council, that agreement does not exist anymore, the spokesman said. Changing the text at this point is a break with procedure, he said.

Cancelling articles 6 to 8 articles essentially means that the ECJ will be excluded from the future unitary patent system, he said.

The move to delete the three articles had the support of the European Scrutiny Committee of the U.K. House of Commons. The committee strongly opposed the inclusion of the three articles in the unified patent regulation in an April report entitled 'The Unified Patent Court: help or hindrance?'

"It is plain, in our view, that the jurisdiction of the Court of Justice over Articles 6 to 8 leads to anomalous consequences," the U.K. committee said at the time, adding that involvement of the ECJ could lead to undesirable consequences such as decisions by non-specialist judges, delays and added costs. Allowing the ECJ to be part of a future unitary patent system would defeat the whole purpose of having a specialist patent court, the committee said.

However, the committee noted that while excluding the court would be the right thing for patent law, it saw it as inevitable that the ECJ would become involved as a matter of E.U. law. "This calls into question whether incorporating a unitary patent regime within the E.U. will ever be practicable," the committee concluded at the time.

Whether it is legal to delete articles 6 to 8 and thus exclude the ECJ from the unitary patent system is also a point of debate within the parliament, the spokesman said. Excluding the court could be a "big mistake," because it could lead to the ECJ itself declaring the whole unitary patent law system invalid, he said. The parliament has debated the deletion of the articles in the past but decided not to delete them because of the same concerns, he added.

The parliament's committee on Legal Affairs will discuss the deletion of articles 6 to 8 next Tuesday, the spokesman said.

Loek covers all things tech for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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