Unitary Patent: Keys for European Patent Office and Door to European Parliament
Paris, December 11th, 2012. Press Release.
On Tuesday December 11th, 2012, the European Parliament voted for the regulation on the unitary patent: Members of the European Parliament (MEPs) have eventually accepted the text despite all legal, economic and political concerns over which we had warned them1.
Furthermore, the Advocate General of the Court of Justice of the European Union (CJEU) has concluded that the Enhanced Cooperation procedure was not affected by illegality without assessing the merits of the implementing regulations. However, he has warned that unitary patent cannot be achieved by the Member States, but only by the Union2, which does not match the procedure exactly.
April regrets a missed opportunity for the European Parliament to finally create a genuine patent of the European Union. “Even if some MEPs, and above all the Greens/EFA group, fought for an improvement of the text, and despite concerns expressed by Polish MEPs, the majority blindly followed the deceiving talk of a rapporteur Rapkay incensed by the critics voiced, and voted in support of a problematic text. ”
The next steps, a formal adoption in the Council and the decision of the ECJ, are not expected to reverse the trend. The adoption of the international agreement which sets up a unified patent jurisdiction t by the Member States may however highlight new objections. A possible recourse by a Member State before the ECJ could finally sack the entire text for its illegality: the opinion of the Advocate general alludes to the result of such action is far from being certain.
"There is still the issue whether companies will actually use this instrument, as many have already said that they prefer the current system rather than the legal uncertainties of the unitary patent", explains Jeanne Tadeusz, Public Affairs officer at April.
April denounces the message sent by the European Parliament to deliberately abandon its power on patent issues, and the glowing report given to the European Patent Office, despite controversial practices on granting software patents in disregards with European law.
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 5,000 members, using or producing Free Software.
Frédéric Couchet, Executive Director, firstname.lastname@example.org +33 660 688 931
Jeanne Tadeusz, Public Affairs Officer, email@example.com +33 1 78 76 92 82
Gérald Sédrati-Dinet, Volunteer Advisor on patents brevets, firstname.lastname@example.org +33 6 60 56 36 45
- 1. See the amendments APRIL had suggested to this end.
- 2. Advocate General's Opinion recalls that: “the question of the creation of a specific judicial system for unitary patents is not among the conditions required by the relevant articles of the Treaties for the implementation of enhanced cooperation. The authorisation granted by the Council for the setting-up of enhanced cooperation is merely the premiss for the adoption of other legislative acts which will then have to give specific effect to that enhanced cooperation. Furthermore, in its proposal of 13 April 2011 for a regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection, (29) the Council addressed the question of jurisdictional protection of that patent.”