[Ip-health] A letter by the EU patent rapporteur?
ante at ffii.org
Sat Dec 8 05:07:50 PST 2012
A letter by the EU patent rapporteur?
December 8, 2012
A letter allegedly written by European Parliament rapporteur Rapkay defends
the unitary patent. I do not know whether the letter is real, or fake. I asked
Mr Rapkay, no confirmation or denial yet. Whether written by the rapporteur or
not, the letter gives insight in the proponents’ arguments.
The letter actually confirms the doubts about the unitary patent. With this
patent package, the EU leaves the competence to grant patents at the European
Patent Office, with no say in the matter. The regulation grants a unitary effect
to the European patent, without the EU having any influence on the process. A
non EU title is upgraded to an EU title, but the EU never puts a stamp on it.
The EU will not even have an office to do this. No competence for the EU Court
of Justice. The EU will automatically import foreign titles.
Or, is the unitary patent not an EU title? Then article 118 TFEU can not be
used, and why does the EU create a court for a non EU title?
The letter says that by the compromise, the European Court of Justice is not
excluded from interpreting EU law including the regulation on the unitary
patent. Right, but the letter conveniently does not mention there is hardly EU
patent law, so the EU court’s competence is very, very limited.
The EU outsources its patent law to a captive incrowd, while patents can be a
matter of life and death, like in medicines, seeds and our ability to fight
climate change; and innovation is strategically important.
See also http://unitary-patent.eu/
A couple of days ago, Mrs Lichtenberger has sent a so-called "open
letter" to the MEP regarding the Unitary Patent. She put forward
some arguments in this letter which are not true.
I would like to make a couple of remarks on her argumentation:
* The rapporteurs on the patent package had a mandate to
negotiate, adopted by the JURI committee.
* As regards the compromise found, the EU will not delegate
competence and power in this area to the European Patent Office
(EPO). EPO would not have the power to grant unitary patents.
All the regulation does, is to grant a unitary effect to the
European patent. This has nothing to do with the EPO competence.
* The compromise on the table was not "imposed by the Council". To
the contrary, the council has tabled what we as EP have asked it
* By this compromise, the European Court of Justice (ECJ) is not
excluded from interpreting EU law including the regulation on
the unitary patent.
* The ECJ's task though will not be to take final decisions on
patent disputes, because this would not be compatible with EU
law, as the EJC has stated already. The ECJ's task is the
interpretation of EU law!
* It is not true that there is a "strong presumption among experts
that the regulation does not comply with Article 118 TFEU". The
paper written by the Max-Planck-Institute was written before the
compromise on the table was found and article 5 was inserted. In
addition, the EP legal service has put forward supportive
arguments for that compromise as well during the JURI committee
meeting. Article 5 contains an referral to art. 14 f-h of the
UPC-agreement regarding the acts which the patentee can stop
with his right to prevent. Therewith art 118 as legal basis can
be considered as given.
* The new system of rules would not be "incoherently spread across
a myriad of legal regimes". The new article 5 contains the
referral to the UPC-Agreement which in articles 14f-h ensures
that the rules are the same in every member state.
* In addition, the limitations laid down in the regulation will
now be completely incorporated into the UCP-agreement. These
provisions are identical to those that had been in the
regulation before. A "breeders' exemption" is also part of these
limitations, therefore the EP resolution has not been ignored.
You are welcome to contact me in case you have any further questions
or need for clarification.
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