Member of Parliament Janelly Fortou is sending a text to Members of Parliament intended to convince them to vote for the latest compromise on the Enforcement Directive worked out behind closed doors. This is online at the AEL Wiki.
The AEL Wiki has also a page up countering Ms. Fortou's claims. I have spent some time today on spelling checks.
I would also like to focus on the relation to patent disputes. Ms. Fortou writes:
There is no longer a concern that the Directive’s remedies will be applied unjustly in patent disputes.
Despite initial opposition by the Legal Affairs Committee, who had sought to exclude these from the scope of the Directive, the Council text applies to patent infringements. The Legal Affairs Committee properly believed that certain of the Directive’s measures (double damages and strong criminal sanctions) should not apply to patent infringements. This concern has been mitigated by the elimination of double damages and criminal sanctions from the Directive. Patent litigation is almost exclusively conducted between competing commercial organisations involved in the same area of trade. Patent litigation tends to focus on questions about the validity of the relevant patent, and not necessarily on counterfeiting matters. In these circumstances, strong criminal sanctions and double damage remedies are less appropriate. Given that these remedies have been eliminated from the Directive, however, there is no longer a concern that they will be unjustly applied in patent disputes.
I support the FFII call for an amendment throwing patent disputes out of the scope. So I am interested in comparing this latest text with the reason given for doing exactly that in the September 2003 report of Ms. Fortou I discussed at the time.
That document said on page 6: "Patents need to be excluded from the scope of the directive in view of their special nature." And on page 27 it explains: "On the matter of patents the rapporteur proposes excluding them from the directive’s scope, since the European Patent Convention is the sole text in force at present and the question of patent protection is such a complex and delicate issue that it deserves a specific text, perhaps following adoption of the text on the Community patent."
That reasoning is in no way invalidated by dropping some of the stronger remedies of the original Commission proposals, like double damages and criminal sanctions.
The European Patent Convention is still the only text in force at present. And the coming patent regulation is still the correct place to legislate patent sanctions.
Doing so in this Directive without discussing the balance with the future patent regulation seems to be a sure-fire way to assure contradictions between both texts. For the very least, those supporting pushing through the compromise at supersonic speed should explain the relation to the coming patent regulation in some more detail.