Call to Action

The European Parliament is about to vote for a regulation on the unitary patent, during its plenary session, on December 11th, 2012.

The purported goal to have a single patent covering the whole Union may be praiseworthy. But this regulation, up to its very title, is actually very deceiving. Indeed, its content leaves the European Union (EU) aside in many aspects, leading to a fragmented patent system, which will be untamable by the democratic bodies of the EU. Instead the “patent microcosm” will gain amazing powers, while its governance has been highly criticised, specially with regard to its practice of granting software patents, against the letter and the spirit of European patent law.

You can change this fate by calling Members of the European Parliament (MEPs), urging them to vote for two compromise amendments n° 76 and 74. By doing so, two basic messages can be carried: POWER TO THE PARLIAMENT and NO SOFTWARE PATENTS!

For a complete understanding of Tuesday, December 11th plenary vote, read The Lord of the Unitary Patents: a preview on European Parliament plenary vote. See also, letters from Ericsson, Nokia and BAE asking MEPs to reject the text.

Arguments

The text of the regulation has been pushed by the European Patent Office (EPO) and the patent department of BusinessEurope, and agreed by the Council of Ministers of the EU, the European Commission – whose main responsible has now become director at the EPO – and German rapporteurs of the Committee on Legal Affairs (JURI) of the European Parliament. Despite many warnings, including by the legal services of the Parliament, that the current text was not compliant with EU law, the European Parliament is pressured to vote for it on December 11th, 2012: only one single day after its likely approval by the Council, and the very same day when the Advocate General of the Court of Justice of the European Union's opinion on the legality of the legislative procedure is expected. It is crucial that Members of the European Parliament are made aware of issues surrounding the unitary patent.

The content of the regulation does not actually define a patent title of the EU. Indeed, everything is made for the EU to have no grasp on the unitary patent:

• The European Parliament (EP) will be deprived of any powers to define a fair and efficient patent policy, for instance by imposing an exception to the rights conferred by a unitary patent with regards to acts related to the use or the development of software.
• The Court of Justice of the European Union (CJEU) will have no competence to balance patent right with other areas of law in accordance with the principle of proportionality; CJEU will have no control over patent law,except on biotechnological inventions which have been regulated by the EU many years ago.

The EPO will be the big winner of the unitary patent. Not only it will grant unitary patents, which will cover a larger market than ever, but these will be enforced by a specialised court which rulings are likely to reproduce EPO's practices.

To prevent such a disaster for European innovation and growth, we have proposed, among others, two compromise amendments which have been tabled by Greens/EFA group:

• The first one (n° 76) renders explicit that the unitary patent is enshrined in EU law, under the competence of its legislator, and in particular of the European Parliament, along with the CJEU.
• The second one (n° 74) restates the exclusion of software from patentability, as already expressed by the European Parliament in 2003 and 2005.

Failing to support these two basic amendments would be a blatant negation of any Europeanist stance and of the claim that the unitary patent eventually fosters innovation in the benefit of European firms, and specially Small and Medium Enterprises (SMEs).

Background informations

• An analysis of the plenary vote to come.
  
• Our proposition for two compromise amendments, with justifications.
• The last version of legislative proposals.
• A video summarizing issues surrounding the unitary patent.
• A keynote, explaining the disunion and anti-Europeanism carried on by the current unitary patent.
• Some questions to ask to MEPs.
• An open letter from Greens/EFA MEP Eva Lichteberger to her colleagues of the European Parliament.
  
• A resolution already signed by more than 600 companies.
  
• A thorough analysis of the regulation, published on the Social Science Research Network (SSRN).
• Confirmations by academics of the flaws in the unitary patent, published on SSRN.
• An analysis by the Max-Planck-Institute for Intellectual Property and Competition Law.
• A motion on the project for a European Patent Court by Law professors and lawyers.
  
• A column by Daniel Cohn-Bendit and Michel Rocard, published (in French) by Mediapart.
• Some quotes criticizing the governance of the European Patent Office.
• A detailed example on how dangers of software patents are increased with the unitary patent project.

If you have some questions or comments, feel free to contact us! Thanks for your action!