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Unitary patent system & EPO strikes – questions in the European Parliament

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EU flagMarc Tarabella is a Member of the European Parliament (see his biography here). Back in October 2013, he asked a question of the Commission relating to the possibility that “patent trolls” could soon arrive en masse in Europe thanks to the incoming unitary patent system. As noted on IPKat this question resulted in a slightly sniffy response from Commissioner Barnier which started by saying “The Commission fails to see how the recent Union legislation on patents, namely Regulations 1257/2012 and 1260/2012, could increase the activity of so called ‘patent trolls’ in Europe.”

It would seem Mr Tarabella has not been put off by the previous response he received and he’s recently asked more questions about the unitary patent system. It should be noted that Mr Tarabella generally appears to be something of a Parliamentary Questions Factory with, currently, 1229 questions on various topics to his name!

All three of Mr Tarabella’s questions were asked on 17 April 2014.

Question 1 – Injunctions on invalid patents (link)

First up Mr Tarabella raises the issue of bifurcation (though he never uses the term itself).

A working group comprising representatives of the Member States is currently examining the draft regulation of the Unified Patent Court. The 15th draft regulation allows a twin-track procedure in two independently competent courts, one which rules on questions relating to the validity of a patent, the other on questions of breach. This introduces a considerable risk, namely that the Court determining a breach could issue an injunction excluding products from the market before the court with competence over validity has established that the patent is valid, thus penalising European companies even though their behaviour is entirely lawful.

Meanwhile, DG COMP is concerned about abuses of a dominant position by companies which have sought to abuse their patent rights.

In order to avoid the risk of granting injunctions based on invalid patents, will the Commission support the maintenance or the suspension of an injunction until the competent court has ruled on its validity?

IPcopy notes that the current draft (16th) of the Rules of Procedure of the Unified Patent Court provides discretion to grant a stay in a couple of places in the rules. See for example Rule 37(4) which operates when a case has been bifurcated. Additionally Rule 118(3)(b) allows a stay where there is an infringement action in a local/regional division and a revocation action in the central division.

Question 2 – A European Unified Patent Court faced with a twin-track court system (link)

Question 2 seems really to be a reworded version of Question 1. However, instead of suggesting that an injunction is suspended pending a validity ruling, Question 2 is asking the Commission to confirm that they don’t agree with the idea that injunctions can be granted on invalid patents

A working group consisting of representatives of the Member States is currently examining the draft regulation of the Unified Patent Court. The 15th draft regulation allows a twin-track procedure in two independently competent courts, one which rules on questions relating to the validity of a patent, the other on questions of breach. This introduces a considerable risk, namely that the Court determining a breach could issue an injunction excluding products from the market before the court with competence over validity has established that the patent is valid, thus penalising European companies even though their behaviour is entirely lawful.

Meanwhile, the Directorate General for Competition is concerned about abuses of a dominant position by companies which have sought to abuse their patent rights.

Does the Commission agree with injunctions that should not be applied on invalid patents?

Question 3 – Abuse of a dominant position by patent trolls in a dual system of jurisdiction (link)

Question 3 returns to Mr Tarabella’s previous territory, namely the invasion of Europe by the Patent Troll. We suspect a similar version of Commissioner Barnier’s earlier response will be issued in due course on this one!

A working group composed of representatives from the Member States is in the process of examining the draft set of rules relating to the Unified Patent Court. The 15th draft of the rules provides for the bifurcation of the procedure into two independently competent courts, one of which will decide on issues surrounding the validity of a patent, the other of which will decide on issues of infringement. This introduces a considerable risk, namely that the court deciding on the infringement could issue an injunction taking goods off the market before the court with competence to decide on the validity has held that the patent is in fact valid, thus penalising European undertakings despite the fact that they have behaved in a perfectly lawful manner.

Meanwhile, DG COMP is concerned about abuse of a dominant position by undertakings that have sought to abuse their patent rights.

Is the Commission aware that, without an order of invalidity, the Unified Patent Court may enable patent trolls to abuse their dominant position in its attempts to issue injunctions in respect of invalid patents?

Bonus round

Mr Tarabella isn’t the only person to be asking questions of the Commission though. Nikolaos Chountis (Parliamentary questions = 912) asked the following question on 16 April 2014:

Relations between the European Union and the European Patent Office

According to reports in the German newspaper Süddeutsche Zeitung, the administration of the European Patent Office has adopted internal operating rules that, inter alia, call into question basic democratic and trade union rights, such as the right to strike and the right to union representation. More specifically, according to the newspaper, workers’ right to strike is subject to the approval of the head of the European Patent Office, an arrangement that essentially abolishes any union freedom.

Given that the European Patent Office has a special and unique legal status and also has specific institutional relations with the European Union, will the Commission say:
1. Can it confirm these reports?
2. What is the regime governing relations between the European Patent Office and the European Union? What opportunities does it have to ensure that this unacceptable anti-labour regime finally ceases?

Interesting! (We think the newspaper report referred to in the question is this one. However, if anyone knows any differently then please let us know.)

Based on the timeline of the original exchange between Tarabella and Barnier we might expect a response to these questions in early July. We’ll keep you updated.

Mark Richardson 30 June 2014

 


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