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Tuesday, July 21, 2015

Unified Patent Court: a Dutch Post Consultation Update

Last May, the Dutch government has held a consultation regarding the changes to the Rijksoctrooiwet (the Kingdom Patents Act) in order to implement the provisions of the unitary patent. The consultation also included implementation provisions for the approval act of the Unified Patent Court.

I have dedicated a blog post to my unease with the current implementation path which IMO had serious disadvantages for the caribbean territories in the Kingdom, to which -as non EU territories- the unitary patent would never apply, but to which the Dutch version of the European Patent (including translation requirements etc) would continue to apply. For those who understand Dutch: my contribution to the consultation is here.

The exciting news of today: the government response to the consultation is in! It shows a disappointingly low response: only 9 responses were received. The response to my (and apparently others') concerns and suggestions regarding the implementation in the caribbean translated (disclaimer: by me) below (with my comments in red):

A couple of respondents asked wether it was possible to implement the option to request unitary effect for a European patent also also for Curaçao, Sint Maarten and the Caribbean part of the Netherlands. This is impossible, as both the Unified Patent Court Agreement and Regulations 1257/2012 and 1260/2012 only can apply to the EU Member State the Netherlands and can therefore not apply to the Caribbean part of the Kingdom. This is true for the Regulations, but it is very much debatable with regards to the UPC Agreement, to which the Kingdom is a signatory, and which will anyway apply to the Caribbean part as the territorial scope of decisions regarding non-unitary patents extends to everywhere where the European patent applies (Article 34 of the UPC agreement seems clear: Decisions of the Court shall cover, in the case of a European patent [with non-unitary effect], the territory of those Contracting Member States for which the European patent has effect.). It remains incomprehensible that the chosen procedure for the UPC agreement approval does use a regular Act and not a Kingdom act. Even if ratification takes only place for the European Netherlands, the Kingdom act approval process guarantees consultation of Curaçao and Sint Maarten and the possibility to include their views in an area where they are clearly effected. 

A couple of respondents has pleaded to extend the Act with provisions that are specific to the situation where a [Dutch version of the] European patent is only applicable in the Caribbean part of the Kingdom, such as other translation requirements, financial provisions or different governance competences. The government is of the opinion that such changes are out of scope of the proposed act. It is emphasized that when a European patent enjoys unitary effect in the European part of the Netherlands, and also gives protection in Curaçao, Sint Maarten and the Caribbean part of the Netherlands as a result of national validation, the situation in the Caribbean part of the Netherlands does not differ from a national validation applicable to the whole Kingdom [e.g. a non-unitary Dutch EP].
Again, the idea is thus that in a case of unitary effect by taking the European Netherlands out of the territorial scope of the "Dutch European patent", nothing changes for the Caribbean. This is not true of course, because:
-invalidation of a unitary effect does not invalidate the the Caribbean part (and vice versa!)
-infringement of a unitary patent in Sint Maarten and in Amsterdam has to be litigated separately
Furthermore, although there may be quite some similarities between 
i) a non unitary EP valid through the whole kingdom on subject x and 
ii) a territorially limited Dutch EP on subject y
but this is not the most relevant comparison, because it still means that a big difference will exist between the unitary patent in the European Netherlands on subject x and the same limited Dutch EP also on subject x in the rest of the Kingdom. This means for example that for the same invention, probably the applicable law is different and renewal fees need to be paid at 2 different locations. 

Regarding the level of renewal fees that should apply to this situation [the territorially limited Dutch EP], the government notes that this is not the subject of the Kingdom Patents Act, but of the implementing Decision of the Kingdom Act. That's true, but it is also a bit cryptic. If the implementing decisions are not changed, patent holders keep paying the full price for their territorially limited Dutch EP. Does the government anticipate to lower renewal fees? And to what level? The fact that the economic value of the Dutch EP falls by 99% (in terms of GDP) means that also with a significant reduction of -say- 50%, the proposition for a territorially limited Dutch EP would be a lot less strong. 


This blogger is slightly disappointed that the government keeps its somewhat formalistic approach (nothing changes in the Caribbean as they don't get a new court or patent) and genuinly annoyed about the fact that the implementation path does not acknowledge the situation that according to article 34 UPC decisions apply also to the Caribbean. He reminds again that as a rule, European Union treaties are approved by an approval act covering the whole Kingdom (because it concerns also the Caribbean parts as Overseas Countries), while ratifying only for the European part (the territorial scope of Union law). That should also be the minimum thing to do here as well. 

And now we wait...

The proposal is now off to the Raad van State (Council of State), a routine and required step. Its advice will be made public as soon as the government sends the legislation to the parliament. The government has the possibility to amend the proposal based on the advise, and may also amend it during the first stage of the parliamentary procedure (before parliamentary voting) through a "nota van wijziging" (Note of amendment). And also members of the 2e Kamer (house of deputies) are able to propose amendments and draft motions (e.g. regarding renewal fees). So not all is lost, there is still lots of intelligent people that can bring the legislation on a level where EU unification doesn't mean separation in the Kingdom!

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