Unitary Patent: Eva Lichtenberger sends an open letter to her fellow MEPs

OPEN LETTER TO THE MEMBERS OF THE PARLIAMENT

Dear colleagues,

the European Patent Package[1] is set to be debated and voted in first reading in the December despite the fact that the European Council amended the first reading agreement reached with the Legal Affairs Committee, and no subsequent negotiations have being held to discuss this.

In spite of concerns about the compatibility of the Patent Package with the Treaties, the Legal Affairs Committee refused my request for a written opinion from the EP's legal service. The European Court of Justice is also currently considering the legality of the enhanced cooperation on the patent package, with a ruling of Advocate General expected on 11 December: the same day as the vote. It is quite likely that the opinion will conclude that the procedure is not compatible with the Treaty.

Against this background, it would seem appropriate for the Patent Package to be removed from next week's plenary agenda and postponed until after the legality of the procedure has been verified, at the very least. However, the JURI rapporteurs prefer to go ahead, disregarding concerns for the rule of law.

If the Patent Package is adopted the EU would be delegating competence and powers in this area to the European Patent Office (EPO), an extra-EU institution. The "compromise" imposed by the Council gives the EPO the power to grant of unitary patents without any effective review by the European Court of Justice (ECJ), which would be largely excluded from the jurisdiction on EU patents. There would be no possibility to appeal decisions of the new Unified Patent Court before the ECJ. The Unified Patent Court could just ask the ECJ to give preliminary decisions, while leaving the final decision [on patent law] with the Unified Patent Court. Furthermore, the European Parliament would give up its rights and competence to co-legislate changes to the patent regime, as the content of the unitary patent no longer would be decided upon in an EU legal act, but in an international agreement among the Member States.

Among experts, there is a strong presumption that the regulation does not comply with Article 118 TFEU, which gives the EU competence to create intellectual property rights and thus lacks a correct legal basis in the Treaties[2] .

Instead of laying down clear rules for the internal market, the package at hand would create a very complex system of rules to be applied by the new Patent Court. This system would be incoherently spread across a myriad of legal regimes: EU law, national law and law based on conventions outside the EU framework. This could lead to increased fragmentation instead of harmonisation, to the detriment also of enterprises and economic operators.

There are also serious concerns as regardsthe substance of patent law. Within the EU there are several national restrictions on the application of patents in the area of biotechnology: such as on patents on human gene sequences, provisions to protect the interests of farmers, such as exemptions for breeders, etc. These restrictions have been deleted from the regulation and are only partially taken into account by the Draft Agreement. Thus ignoring the European Parliament's call "to ensure that the EU will continue to apply a comprehensive breeders' exemption in its patent law for plant and animal breeding as expressed by the European Parliament resolution of 10 May 2012 on the patenting of essential biological processes".

Alongside these serious issues on the merits of such a potential compromise, the way it is proposed by EU institutions raises concerns both for citizens and for enterprises.

The Greens/EFA group will table some amendments which seek to unambiguously define a new patent title for the EU compatible with its legal basis (Article 118 TFEU) and ensure that the patent court is fully integrated in the EU judicial and institutional framework.

The Greens/EFA group will also table amendments to exclude the patenting of plant and animal strains and breeds used in agriculture and some rules in line with Parliament's previous positions defining limits to software patents, in order to contribute to having a genuine unified enforcement of European patents with unitary effect.

Thank you very much for your consideration

Yours sincerely,

Eva Lichtenberger

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[1] The Patent Package consists of: - a Regulation on the European patent with unitary effect and an Agreement on a Unified Patent Court for litigation on infringements and revocation of European and unitary patents.

[2] This has been clearly stated by the Max Plank Institute for Intellectual Property and Competition Law: "Article 118 para. 1 TFEU authorizes the European Parliament and the Council to establish in accordance with the ordinary legislative procedure measures for the creation of European intellectual property rights in the context of the establishment and the functioning of the Internal Market. (...) it has a particular political objective of advancing market integration, which the Union legislator cannot simply delegate to international consensual agreement among Member States. Such delegation would undercut both the institutional rules,( .] and the political autonomy of the Union"