On Friday, 29 June the European Council summit appeared to have reached an agreement on the project of creating the EU Unitary Patent and corresponding court system.  Most of the issues relating to a political package comprising an EU Regulation creating the patent, court and language regime had been solved in January, however the question of where the Central Division of the Court would sit remained. 

The 28 – 29 June Council meeting concluded that, while the Court of First Instance would sit in Paris, two “thematic clusters” would be created in two sections of the Central Division:  one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).

Articles of dispute

This was, however, not the only matter of dispute, with much opposition to Articles 6 - 9 of the draft Regulation arising.  These regulate the right to prevent direct and indirect use of the invention, the limitation of the effects of the Unitary Patent and exhaustion of the rights conferred by the Unitary Patent.  Criticism focused on their potential to allow substantive patent law from becoming subject to review by the European Court of Justice via referral questions according to the Preliminary Rulings procedure in Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).

The Council agreement appeared to have given in to this pressure in part by concluding that ‘Articles 6 - 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and European Parliament be deleted ’. 

European Parliament: dissenting voices

However, the following Monday (2 July) the European Parliament voted to postpone the 4 July vote on the patent and objected to the deletion of the Articles.  German rapporteurs, Klaus-Heiner Lehne and Bernard Rapkay, were among those requesting the postponement, with Mr Lehne stating that the deletion of Articles 6-8 would ‘emasculate’ the proposals.

Moreover, it seems the Parliament objected to the settlement reached on the seat of the Central Division.  Mr Rapkay likened the Council's negotiation on the matter to that of an "oriental bazaar". 

What happens now?

There are reports that the deleted articles issue will be referred back to the Legal Affairs Committee.  Professor Steve Peers of the University of Essex School of Law commented on what he believed should be the next stage of progression, at least for those who remain opposed to Articles 6-8:

"[I]t is not enough to win the political argument […] They also have to engage in the legal argument that the regulation would still be a valid use of the power conferred by Article 118 TFEU even without Arts. 6-8.”