[pp.int.general] Fwd: [The IPKat] Unitary patents: how Spain takes on the rest of Europe

Tue Jul 12 22:18:41 CEST 2011

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What does this mean in practice?

On 07/12/2011 01:07 PM, Amelia Andersdotter wrote:
> hope nobody missed this
> 
> -------- Original Message --------
> Subject: 	[The IPKat] Unitary patents: how Spain takes on the rest of
> Europe
> Date: 	Mon, 11 Jul 2011 10:55:58 -0700 (PDT)
> From: 	Jeremy <jjip at btinternet.com>
> Reply-To: 	jjip at btinternet.com
> To: 	ipkat_readers at googlegroups.com
> 
> 
> 
> <http://3.bp.blogspot.com/-JSgGP5tKaRQ/Ths4_RFoQwI/AAAAAAAASRg/Ksn_1hoZo5U/s1600/wain.jpg>
> *Casually checking the Curia website for signs of excitement *on a
> Monday is usually a bit of a waste of time.  This Kat was prowling
> around the site in the hope that perhaps some careless bureaucrat had
> inadvertently posted tomorrow's ruling in Case C-324/09 /L’Oréal v eBay/
> a day early. The Kat's curiosity was rewarded -- but not in the way he'd
> hoped.  Instead he found a real live action brought by the Spanish
> against our lords and masters in the Council of the European Union
> itself: *Case C-274/11
> <http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docdecision=docdecision&docop=docop&docppoag=docppoag&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&radtypeord=on&typeord=ALL&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=274%2F11&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=&domaine=&mots=&resmax=100>* /Kingdom
> of Spain v Council of the European Union,/ to be precise.  This is an
> action to annul *Council Decision 2011/167
> <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:076:0053:0055:en:PDF>*
> of 10 March 2011 authorising enhanced cooperation in the area of the
> creation of unitary patent protection (OJ 2011 L 76, p. 53). The legal
> substance of the Spanish case runs like this:
> 
>     "*Pleas in law and main arguments *
> 
>     1. Misuse of powers since recourse was had to enhanced cooperation
>     although the purpose is not to achieve integration of all the Member
>     States - the mechanism having been used instead to avoid negotiating
>     with a Member State, imposing upon it an opt-out solution - and
>     although the objectives pursued in this instance could have been
>     achieved by means of a special agreement as provided for in Article
>     142 of the *European Patent Convention
>     <http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ma1.html>*. 
> 
>     2. Failure to respect the judicial system of the EU in that no
>     dispute resolution system is provided for in relation to certain
>     legal rights subject to EU law. 
> 
>     3. In the alternative, should the Court find that it is appropriate
>     in this instance to have recourse to enhanced cooperation and that
>     it is possible to establish substantive rules for legal rights
>     subject to EU law without making provision for a dispute resolution
>     system in relation to those rights, the Kingdom of Spain submits
>     that the necessary conditions for enhanced cooperation are not met
>     for the following reasons: 
> 
>     3.1 infringement of Article 20(1) *TEU
>     <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:EN:PDF>(that's
>     the Treaty on European Union, not to be confused with ...)*, since
>     in this instance enhanced cooperation is not a last resort and does
>     not fulfil the objectives provided for in the TEU and since areas
>     are referred to which are not within the scope of enhanced
>     cooperation as they are exclusive competence of the EU. 
> 
>     3.2 infringement of Article 326 *(... the Treaty on the Functioning
>     of the European Union)* *TFEU
>     <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:en:PDF>*,
>     since enhanced cooperation in this instance infringes the principle
>     of non-discrimination and undermines the internal market and
>     economic, social and territorial cohesion, constituting
>     discrimination in trade between Member States and distorting
>     competition between them. 
> 
>     3.3 infringement of Article 327 TFEU, since the enhanced cooperation
>     does not respect the rights of the Kingdom of Spain, which is not
>     participating in it".
> 
> Spain has taken on the rest of Europe before -- *winning in commendable
> style* <http://en.wikipedia.org/wiki/UEFA_Euro_2008> -- but this is
> different, notes the IPKat: it's not the other bits of Europe that Spain
> is challenging this time, so much as the rules of the game themselves.
> Hmm, says Merpel, the politics gets really interesting once you bring
> football into it.  Spain's prowess is, to a considerable extent, owed to
> the excellence of a team from Catalonia, the little of the planet that
> uses the .cat top level domain.
> 
> --
> Posted By Jeremy to The IPKat
> <http://ipkitten.blogspot.com/2011/07/unitary-patents-how-spain-takes-on-rest.html>
> on 7/11/2011 06:55:00 PM --
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> 
> 
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- -- 
Rick Falkvinge
Founder and Political Evangelist
Piratpartiet SE

+46708303600, @Falkvinge
Blog, bio and press photos at http://falkvinge.net

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