EU Patent Package Still Under Construction While Italy Joins Unified Patent Court

Antonio Gaudi's "La Sagrade Familia" - Under Construction Since 1882 After last week's the Competitive Council meeting the EU patent deal appeard to be almost done as "only the seat of the Central Division of the Unitary Patent Court needs to be decided" (see tweet of PL Presidency). But now, one week later, reports on further or additional amendments desired by stakeholders constantly sprout up, as recently reported on ksnh::law in form of comments on the two questions "Is the EU Patent Package Still 'Broadly Accepted in Substance'?" and "Will Italy Join Unitary Patent and Ask for Seat of Central Division of Unified Patent Court in Return?". Further recent postings relates to "One Of The Lesser Problems Of EU Unitary Patent Project: Relation To Brussels I", and Critical Position Paper of International IP Federation FICPI on Unitary Patent and Unified Patent Court, inter alia reporting on FICPI's prosition towards the controversial representation issue. Despite the atmoshere of an (almost) done deal, it is more than likely that stakeholdes now will use the time remaining until the "showdown" on 19/20 December - as suggested by JURI member Cecilia Wikström in a tweet - to lobby for amendments that have not been considered at last week's Council meeting. Further to that, the quickly changing political landscape may also have an impact. In our posting dated 8 December, we asked whether or not the Patent Package still is “broadly accepted in substance” by the Council members, as put in the nightly press release coverning the results of the Competitive Council meeting on 5 December. At least the opinions of Commissioner Barnier's Director General, Mr Pierre Delsaux ("discord remains on all points concerning the creation of a court"), make doubt about whether the above question can still be answered by "yes". Especially the strong desire of (parts of) industry [1] and patent professionals [1][2][3], politically supported by JURI member Wikström and UK IP Minister Baroness Wilcox, to remove Articles 6 to 8 dealing with substantive patent law on patent infringement from the proposed Regulation appears to be still at stake (see also here or here). The fears of those groups are that otherwise substantive patent law would become part of EU legal order causing costs, delays, legal uncertainty. A related EPLAW resolution expressed such concerns in a rather pointed way: If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible. If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible. And if so…