Saturday

4th Feb 2023

MEPs blast "illegal" attempt to re-write patent rules

  • (Photo: European Commission)

A last-minute deal by governments to re-write the torturously agreed rules on a single EU patent breaks community law, according to lawyers working for the European Parliament.

In a legal opinion on the proposal, Parliament's legal service said that while member states were legally entitled to propose amendments to the bill, the articles they took out - numbers 6 to 8 - remove an "essential element".

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Moreover, it would breach the provision in the EU treaties to adopt "measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights".

Removal of the three articles would mean that "the act would not permit the uniform protection of intellectual property rights throughout the Union and, consequently, would not comply with the requirements laid down in Article 118", the opinion concluded.

The latest hold-up to the deal came as France, Germany and the UK each insisted on hosting the patent court in their country.

Under the compromise hammered out at the EU summit two weeks ago, the main headquarters of the Unified Patent Court would be in Paris, with London hosting the court dealing with life sciences and chemistry patents, and Munich handling engineering.

However, the eleventh-hour concession to Britain, by stripping articles 6-8 of the law concerning the role of the Luxembourg-based European Court of Justice in patent disputes, provoked fury amongst MEPs. The articles include the right of patent holders to prevent the use of their invention as well as limitations on the patent itself.

MEPs first responded to a deal struck at the June Council summit ten days ago by cancelling a parliamentary vote in Strasbourg last Wednesday (4 July) that would have ratified the deal. Klaus-Hehner Lehne, the German centre-right MEP who chairs the Legal Affairs committee, then called on the Parliament's legal service to analyse the legality of the Council deal.

At a fractious hearing (10 July) of the Parliament's Legal Affairs committee following the release of the paper, MEPs led by German socialist Bernhard Rapkay, who heads the Parliament's negotiations on the file, described the proposals as "illegal" and "totally irresponsible".

He also insisted that he would not re-negotiate on the new terms, adding that the EU institutions should use the upcoming parliamentary recess for "a period of reflection".

However, Saj Karim, a British conservative member of the committee, insisted that the referral system spelt out in the articles were "inappropriate". Meanwhile, MEPs from the Liberal group, led by Swedish MEP Cecilia Wikström, indicated that a deal could still be salvaged.

Negotiations between MEPs and ministers are expected to resume in September in an attempt to bridge the gap between the institutions.

Parliament agreed its position at first reading and is reluctant to negotiate on the basis of the new member-state compromise. Failure to bridge the gap would see the regulation return to the Legal Affairs committee for a second reading, adding a further delay and the possibility of re-opening other articles in the text.

European patents currently cost €35,000 according to figures provided by the European Patent Office (EPO) roughly ten times the cost in the US. Supporters of a common patent system say that it could cut costs by up to 80 percent.

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MPs on the UK's House of Commons European Scrutiny committee have demanded that the new EU patent court be based in London in order to mitigate against what it described as "the most damaging effects of a unitary EU-wide patent".

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