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

Amelia Andersdotter teirdes at gmail.com
Tue Jul 12 23:01:41 CEST 2011

spain and italy are objection to an "enhanced cooperation" inside the 
european union. to my knowledge, this has only happened once before, 
then with the prüm convention, negotiated and signed between six member 
states as an enhanced cooperation on issues of preventing terrorism.

it was signed and ratified by the original 6 states in 2004, and was 
made into EU law by 2006 i think (both signing and making into eu law 
was done under commissioner frattini i guess, even if the original 
cooperation would have been approved by his predecessor).

what italy and spain thus know is that if there is an enhanced 
cooperation around patents negotiated and signed, they can expect to 
"have" to join within the next couple of years.

italy and spain are not opposed to the patent cooperation AS SUCH but 
feel it unproper that the language requirements do not include italian 
or spanish (italian in particular is reasonable - there's almost 10 
million more italian speakers than french or native english speakers in 
the union).

as for enhanced cooperation: it's on a case to case basis. michel 
barnier at dg trade is an IPR maximalist, much like the rest of his 
political party in France (UMP, also home to Sarkoszy). the ECJ have 
already said that the existing proposal for community patent (inside the 
european union) are not compliant with the existing framework treaties. 
it remains to be seen if the ECJ actually has the power to stop 25 
member states of the union striking an additional agreement outside of 
the scope of the Union's existing framework or not - it' be weird if 
they could, since it'd basically mean the benelux trademark cooperation 
also is fishy with respect to eu law.

On 12.07.2011 22:18, Rick Falkvinge (Piratpartiet) wrote:
> Hash: SHA1
> 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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> - -- 
> Rick Falkvinge
> Founder and Political Evangelist
> Piratpartiet SE
> +46708303600, @Falkvinge
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