Members of European Parliament ask Santa Claus for a unitary patent

Brussels, Tuesday December 20th, 2011. Press release.

Members of the Committee on Legal Affairs (JURI) of the European Parliament have given a rubber stamp1 on an agreement, negotiated behind close doors2 with the Council, about the introduction of a unitary patent and a unified patent jurisdiction. Unfortunately, today's vote has failed to address major legal issues surrounding this project, which are likely to make the regulation voided by the Court of Justice of the European Union (CJEU). Moreover, the architecture of the unitary patent as voted today betrays the withdrawal from European Union (EU) legislators in deciding about EU policy on innovation for the profit of the European Patent Office, a self-governed non-EU agency, which is notably known to favour software patents against the letter and the spirit of European Patent Law.

Gérald Sédrati-Dinet, voluntary counsel on patent matters for April, has commented today's vote as being “no more than a wishful letter to Santa-Claus: you know that what you're asking is not realistic and is likely to fail, but you wish so much for it that you nevertheless ask for the impossible.”.

Indeed, the majority of JURI members3 has rushed to blindly approve an agreement reached with the Council on a “patent package” including two EU regulations setting up a Unitary Patent and associated linguistic arrangements and an international convention installing a Unified Patent Court. For more than 60 years, the EU seeks such a unique patent title covering the whole EU territory and enforceable before a single court. Commissioner Barnier is eager to achieve a result at any cost, where all his predecessors have fell4. This could explain why today's vote has been pushed in haste while rapporteurs of the European Parliament have reached a political agreement with the Polish Presidency of the Council.

But, as soon as the regulation on the unitary patent has been proposed by the Commission5, April has warned that it raised serious concerns with regard to its compliance with the EU Treaties. Moreover, the association promoting Free Software has alerted that the current implementation of the unitary patent regulation was actually strengthening the powers of the European Patent Office, an international body not included in the EU framework whose internal case law has led to grant software patents and drift the role of the patent system from promoting innovation to favouring a derailed use of patents as economic weapons.

“An oversight from the CJEU is unavoidable6 and inseparable from a patent created by the EU. Therefore, the regulation implementing such an EU patent cannot avoid writing down rules for the EU to encompass patent law and to provide democratic checks and balances on the governance of the European patent system. Would the European Parliament confirms in plenary the current text, the Unitary Patent is doomed to be a stillborn child. With the current context surrounding the Euro crisis, the EU cannot afford such a failure.”, has concluded Gérald Sédrati-Dinet.

The European Parliament is supposed to vote for the regulation during a plenary session in February, unless the project is further rushed for January. The Council should also approve it, while the Polish Presidency has recently cancelled7 a ceremony that was expected to kick off the Unified Patent Court.

April urges EU legislators to not blindly rubber stamp the current flawed text and to not miss the opportunity for the EU to take over the control of its innovation policy. April has submitted some amendments8 for this purpose.

About April

Pioneer of free software in France, April is since 1996 a major player in the democratisation and the spread of Free Software and open standards to the general public, professionals and institutions in the French-speaking world. In the digital era that is ours, it also aims to inform the public on the dangers of an exclusive appropriation of information an knowledge by private interests.

The association has over 5,300 members, using or producing Free Software.

For more information, you may go to the following website: http://www.april.org/, contact us by phone at +33 178 769 280 or through our contact form.

Press contacts:
Frédéric Couchet, Executive Director, fcouchet@april.org +33 660 688 931
Jeanne Tadeusz, Public Affairs Officer, jtadeusz@april.org +33 1 78 76 92 82
Gérald Sédrati-Dinet, Voluntary Counsel on patent matters, contact@unitary-patent.eu +33 6 60 56 36 45

• 1. Detailed result of the vote is available on https://www.unitary-patent.eu/content/amendments-juri-committee.
• 2. See “Unitary Patent: the debate will go on in secret”: http://www.april.org/en/unitary-patent-debate-will-go-secret.
• 3. At the exception of members of the Greens group, who have filled and voted amendments supported by April.
• 4. See “Patents in Europe: Barnier's mess”: http://www.april.org/en/patents-europe-barniers-mess.
• 5. See the dedicated website https://www.unitary-patent.eu.
• 6. This opinion is notably shared by the International Federation of Intellectual Property Attorneys (FICPI) that has submitted a position paper to the European Commission stating that: “FICPI cannot see a realistic alternative to a certain involvement of the CJEU also in questions related to infringement cases.”, http://gallery.mailchimp.com/20507f2355b6bd2ec6b352881/files/2011_12_03_FICPI_unitary_patent_position_FINAL.doc.
• 7. See for instance this report by Euractiv: http://www.euractiv.com/future-eu/eu-presidency-nears-poland-vents-frustrations-news-509788.
• 8. Amendment proposed by April can be found on: https://www.unitary-patent.eu/content/amendments-unitary-patent.