Voting recommendations for July 2012 plenary amendments

We strongly encourage Members of the Parliament to adopt amendments 52 to 67, in particular amendments 52, 53 and 54, which bring a legal certainty to the regulation and fix the political issue of the governance of the European patent system, and amendment 57 which would clearly exclude software from patentability. In the event these amendments are not adopted, we recommend to reject the proposal.

Overall recommendations

Amendments 1-51 are those voted by the JURI committee on December 20th 2011. We do not give any recommendations for them, since we are considering that they do not address essential issues raised by the proposal for a regulation.

Amendments 52-67 are filed by the group of Greens/EFA and include the amendments we have proposed, as well as amendments proposed by plant and animal breeders (ams 58-61). Of course, we strongly encourage Members of the European Parliament (MEPs) to vote for these amendments. In particular, amendments 52, 53 and 54, which are mandatory for assuring the legal certainty of the regulation, as well as for the European Union (EU) to not waive all its powers for defining an innovation policy to the European Patent Office (EPO). Also, amendment 57 is important to guarantee that software is excluded from patentability. These amendments are explained below.

Amendment 68 is filed by some Spanish MEPs and proposes to reject the Commission's proposal. Would amendments 52 to 54 be rejected, we recommend to vote for this amendment.

Amendment 69 is filed by the EPP group and is aimed to exclude from patentability the use of biological material for the purpose of breeding, discovering and developing any new plant variety. We do not give any recommendations for this amendment, since it addresses a particular subject. Nevertheless, would this amendment be adopted, we strongly recommend to adopt as well amendment 57, which addresses patentability of software, since for both matters, the EPO's practices have proven to impede innovation and to go against fundamental rights and freedoms.

On the bottom line, would amendments 52 to 54 be rejected, we recommend to reject the proposal.

Explanation of recommended amendments

Article 142 of the European Patent Convention (EPC) is a provision of an international agreement, whereas the regulation on the unitary patent is a normative act of Union law. Assuming that this regulation can be viewed as an agreement in the sense of Art. 142 EPC mixes two fields of law – municipal law and public international law — which are subject to different rules, apply to different legal entities, and therefore are unlikely to be compatible. Amendments 52, 62 and 63 delete from the regulation provisions that mistakenly use Art. 142 EPC onwards.

The Treaty on the Functioning of the European Union (TFEU) gives competence to the EU to create such a unitary patent. But the current proposal defines it as an usual patent granted by the EPO, to which a mere unitary character is attached. In order to clarify this ambiguity, amendment 53 states explicitly that the unitary patent is a title of the EU.

The unitary patent being by nature a right of the EU, it has to be governed exclusively by EU law. To say it another way, the unitary patent should have an autonomous character. This doesn't prevent the grant of unitary patents to be delegated to an extra-EU body, namely the EPO. But the provisions of the European Patent Convention which carry out such a delegation of powers, shall be contemplated as included in EU law, and, as such, are subject to the same rules as if unitary patents were granted by an EU agency. This is a sine qua non condition for the CJEU to ensure that rights granted according to EU law are fully compliant with the legal and judicial framework of the EU. Amendment 54 clearly reaffirms the autonomy of the unitary patent.

In order to bring back the governance of the European patent system in the hands of the EU, amendment 55 proposes to write down in EU law, provisions pertaining to substantive patent law, i.e. what can be patented or not, and under which requirements, and amendment 56 recalls exclusions from patentability.

To address the issue of the EPO currently granting patents on software ideas, against the letter and the spirit of European patent law, amendment 57 clearly defines boundaries of patentability.

Amendment 64 states explicitly that a recourse against any administrative decision of the EPO is available before a national independent court.

Amendments 63, 65 and 67 ensure that the European Parliament, as EU co-legislator, will be implied in defining patent policy, instead of leaving Member States alone delegating this task to the heads of their national patent office.

Amendments 62 and 66 restate the primacy and autonomy of EU Law.

A detailed explanation is given in the justifications for these amendments, or in our analysis of academic studies raising issues addressed by these amendments.