The assignment to Milan of a “real” headquarters of the Unified Patent Court, therefore with the competences that London already had on all pharmaceutical patents and Life science would be much more than bringing a Community institution to Italy: it would be an important piece of a realistic project to relaunch and redevelop the European economy after the Covid-19 emergency. The appeal of professor and lawyer Cesare Galli to the Italian government
June 1st was another historic day of European integration: certainly not as important as the signing of the Treaties of Rome, but nevertheless significant, because it concerns an important component of the future of all of us, such as technological innovation. In fact, the European patent with unitary effects – for now referring to 17 of the States of the Union, but in perspective destined to extend to all – and the Unified European Patent Court have become operational: a supranational Judge, common to the legal systems of the participating countries and always made up of panels of judges from several countries.
Even if we tend to forget it, it is thanks to patents, and the incentive to research that they represent, that vaccines against Covid have been made and have become available in less than a year and that more and more innovations are also being made in the field of environmental sustainability: the protection of intellectual property translates into a tool that allows the market, and specifically to entrepreneurs, to manage the available resources and the externalities (positive and negative) of their economic action efficiently and according to a pro-competitive approach, thus allowing them to give rapid and concrete answers also to the need to pursue the objective of sustainable development.
A story that lasted almost half a century
It is from the 70s of the last century that we work on the construction of a Unitary Patent for the entire territory of the European Union (the current European Patent is in fact only a bundle of national patents, granted as a unit but then “nationalized” in each State to which the owner wants to extend it, after translation into the local language, and also the cases relating to them must be carried out separately for each State covered by the patent) and a European Patent Court (the Unified Patent Court or Unified Patent Court), which ensures unity and consistency in the protection of them.
The advantages of unification will be all the greater for small and medium-sized enterprises, which suffer proportionately more from the costs of patenting and judicial defence against infringement: just think that the cost of translations of patents granted in national languages, which the unitary patent system would allow to avoid, is estimated at 270 million euros per year. of which it is estimated that 20% is supported by Italian companies, which from this cost savings would free up precious resources to be allocated to innovation, which in our country continues to be insufficient. And to this cost must be added that of the judicial defence of patents, which, as we said, until now in Europe had always had to be managed State by State, multiplying the cases and the risk of conflicting judgments.
Unfortunately, however, when this project was finally launched, in 2011, the Italian Government had not considered diaderirvi, essentially in consideration of the fact that it provides that this patent is granted in one of the three working languages of the European Patent Office (English, French and German), while providing a guarantee regime for other countries and a transitional regime in which all granted patents will necessarily be translated into English. Precisely the claim of Italy and Spain to include their languages among those of granting the patent – “officially” for reasons of “linguistic equality”, but more prosaically to defend the lucrative business translations, which for the professionals who deal with it is a significant source of income, but for companies it is a very heavy cost – it had slowed down the project for years and in the end had led the other countries of the European Union to accept the “compromise” of the three-lingual patent (English, French and German), instead of the solution ”
Italiano Only”, cheaper and more advantageous for all, to which Italy had converted only in extremis, when it was too late. Even with the launch of the Monti government, Italy adhered only to the Unified Patent Court, but not to the Unitary Patent, maintaining the appeal to the Court of Justice which had lodged, together with Spain, against the Regulation authorising enhanced cooperation establishing this patent (and which was then rejected, as was the case with two other actions brought by Spain alone). Moreover, the Italian Government had only belatedly submitted Milan’s candidacy to host the headquarters of the European Patent Court, a position not only of prestige, but also of concrete advantage for our companies, which would have had the opportunity to defend themselves “at home”. The repeated appeals of the productive and professional world for a rethink and the very constitution of a Committee, chaired by Diana Bracco, in support of the renunciation of the absurd self-exclusion of Italy from the unitary patent system and of Milan’s candidacy for the seat of the Central Court, fell on deaf ears and in June 2012 this headquarters was thus “divided” among the other three candidates who arrived in good time (Paris, London and Munich).
Only in May 2015, after the rejection by the EU Court of Justice of the two appeals of Spain against the regulations implementing the enhanced cooperation for the establishment of unitary patent protection, Italy had finally broken the delay and the Undersecretary for European Affairs of the Renzi Government, Sandro Gozi, finally gave the green light to join the enhanced cooperation, then formalized in July 2015, and together with the start of the ratification process of the Agreement on the establishment of the Unified Patent Court, which ended in November 2016 with parliamentary approval.
In the meantime, however, the system suffered two other setbacks: the first with Brexit, which among other things made the London headquarters unavailable (dedicated to the validity of chemical and pharmaceutical patents, while that of Paris would have dealt with electronic ones and that of Munich of mechanical patents), opening the way to Milan, a natural candidate to replace it, also because it will host the local Italian Chamber of the Court; and the second with an appeal to the German Constitutional Court, then rejected, but which kept the system blocked for almost two years. In the end, however, all the obstacles – even technical ones – were overcome and now the Unitary Patent and the Court are ready to go.
The advantages for business and research
For the production world (whose main associations, not surprisingly, have all strongly supported the project) the advantages of the new patent and the new Unified Court are obvious. It is not true, moreover, as the proponents of the new system claim, that it would oblige our companies to be judged by “foreign judges”, unlike today: on the contrary, while today our companies, if they sell their products abroad, can be attacked in each of the countries where their products circulate, with this system they would be judged by multinational courts which would also include Italian judges and in a single case for the whole of Europe, with huge cost savings. In the event of infringement involving only Italy, even when the system is “fully operational” (after seven years of transitional regime) it will remain possible to take action before the national courts on the basis of the corresponding Italian patent.
It is not even true, in fact, that the system would cancel national patents, which on the contrary are maintained and will be able to coexist with the unitary one, as well as with the non-unitary European patent. On the contrary, the very introduction of the unitary title, based on the same procedure for granting the current European patent, will provide an advantageous alternative for our innovative companies operating on the European market, with a single coverage on the territory of the EU – in the completely realistic perspective that all the countries of the Union end up joining the system – which would also be suitable to act as a barrier to imports of copy-products from non-EU countries, making it possible to rely on seizure measures at Community borders, which are de facto impracticable when the patent covers only a few countries.
Therefore, the Unitary Patent and the appeal to the Unified Patent Court represent two more possibilities, more favourable in many respects, because this regime is more favourable for the owner in terms of costs, also because it does not require national annual validations and payments; effectiveness, because it constitutes a single title; and also of legal certainty, precisely because in relation to it only a “central attack” is possible, avoiding, in countries where the unitary effect extends, the risk of having titles with different scope of protection (and even no title) in individual countries, with significant practical problems also in terms of free movement of goods.
Similarly, recourse to the jurisdiction of the Unified Patent Court reduces costs compared to the current need to act country by country, at least in all cases where the validity of the patent is contested in a non-manifestly pretextual way; increases the effectiveness of pronunciations, which will always be
cross-border, that is, extended to all the countries of the European Union covered by the Unitary Patent and increases legal certainty, because before the Unified Court the same rules will apply not only regarding validity (which already today for European patents must be assessed only according to the rules of the European Patent Convention), but also for the verification of infringement and, Above all, a Case Law unique in the application of them, making the outcome of the lawsuits more predictable and thus discouraging violations, but also deposits and “instrumental” actions, aimed only at hindering competitors.
In Milan only a “mini office”?
This new European Patent Court, which will give certainty and simplicity to patent protection in Europe, is therefore a great opportunity to relaunch research and trigger a new virtuous economic recovery, especially for Italy. Italy, in fact, is the second EU manufacturing country, where 52% of the drugs sold on the continent are produced. Milan, in fact, had to join Paris and Munich as the third headquarters of this Court in place of London, which left the scene with Brexit and inheriting its competences in the field of pharmaceutical patents, while the electronic ones go to Paris and the mechanical ones to Munich. Instead, in these days, on the eve of the entry into force, it was decided that the Court will start on June 1 with only two headquarters, Paris and Monaco, which will also share the skills of London and to which Milan will join only later and, above all, with drastically reduced skills compared to those of London, “ceding” to Paris the chemical-pharmaceutical patents that have brought a drug on the market (ie the most important) and all the rest of chemistry to Munich.
According to the Government, which made the announcement, this would be a victory: in reality, it is a defeat for Italy, which could really become the European hub of innovation in this field, with great positive effects on economic recovery and the creation of qualified jobs, becoming a pole of attraction also for young researchers: the image of the country would have benefited greatly, demonstrating that “Italy, quality of life” is not a slogan that concerns only art, food, fashion and design, but also research and innovative productions. It will not be so and this “partition” will be detrimental not only to Italy, but to the entire system, also because it will give rise to disputes (founded) in the chemical and pharmaceutical causes that were proposed to the headquarters in Paris and Munich, slowing them down or even blocking them, with serious damage especially to SMEs and more generally for the future of Europe.
Italy all over the world is in fact a symbol of the quality of life: for its exceptional lifestyle, its food and wine culture, its tradition of fashion and design, but also for its most innovative sectors, such as biomedical, mechatronics and artificial intelligence applied in the first place to the sectors that have to do with life, and with all the spin-offs that these activities create. And this is even stronger for Milan, which is the most European Italian city, located in the center of an area that, despite the devastation caused by the tragedy of Covid-19, remains one of the strongest in Europe, especially in terms of innovative companies and research, including universities, with centers of absolute excellence such as the Polytechnic of Milan, the San Raffaele University and the Humanitas Hospital, it is no coincidence that all active in the pharmaceutical and Life Science sectors. This well-deserved reputation is therefore an asset that can help the whole of Europe to compete in the global world, and the choice of Milan as the seat of the UPC would therefore contribute to improving Europe’s worldwide reputation.
In fact, post-Covid Europe will have to aim to implement projects and programmes that allow the mutual enhancement of all the most innovative EU companies, together with the territories in which they operate and therefore the EU as a whole, in order to acquire a competitive factor on world markets. The European economic system must be supported not with assistance, but with aid aimed at building the conditions for a resumption of development, taking into account the new needs of tomorrow’s market, given that we cannot forget the changes in the way of working, and also the new professions, which the “war on Coronavirus” is inevitably introducing, also because in many ways they have positive impacts on life and environmental sustainability and for this reason at least in part they will not be Abandoned together with masks and distancing, when the emergency is over.
In other words, the “new happy growth” of Europe of which the Recovery Fund must lay the foundations will have to respond essentially to the need for quality of life that this crisis has highlighted, and which means – first of all – health, together with the protection of the environment, domestic life, well-being, security (including communications), comfort, the possibility of reconciling work with personal and family needs. The assignment to Milan of a “real” headquarters of the Unified Patent Court, therefore with the competences that London already had on all pharmaceutical patents and life sciences, would therefore be much more than bringing a Community institution to Italy: it would be an important piece of a realistic project to relaunch and redevelop the European economy after the Covid-19 emergency, starting from a clear vision of the future based on the strengths of the various regions of Europe and on the concrete ways to enhance them.
For this reason, Indicam, the main Italian Association against counterfeiting, has launched an appeal directly to the Prime Minister, to propose a summit meeting between heads of government on the subject.
Di
Cesare Galli
03/06/2023
Economia
