The European Parliament Avoids Disaster, But the Unitary Patent is not Saved Yet
Paris/Strasbourg, 2012, July 3rd. Press release.
On Tuesday 3rd and Wednesday 4th July 2012, the European parliament was due to debate and vote on the unitary patent. However, MEPs rebelled against the European Council's desire to substantially change the text at the last minute: they were being asked, in essence, to be a simple rubber-stamping assembly. On Monday, 2nd July 2012, they unanimously postponed the vote and sent the text back for reconsideration by the committees1.
The unitary patent is a project which has been under discussion for several years. It aims to establish a single patent valid in the majority of EU member states, as well as a unified jurisdiction for such patents. While the idea of a single patent is not a problem in itself, April considers the project's current shape very worrying, as it would give full power to the European Patent Office (EPO), sadly known for its position in favour of software patents2.
On Friday 29th June 2012, heads of States and governments, starting with François Hollande and Angela Merkel, conceded to David Cameron removing the provisions organizing control by the European Court of Justice (ECJ) of litigations concerning unitary patents 3.
According to April president Lionel Allorge: "While Fleur Pellerin had assured us that she wanted ‘the European Court of Justice (ECJ) to be the final jurisdiction (CHECK) for patent policy in Europe' 4 , François Hollande did the exact opposite by accepting a patent system left to the microcosm of specialized judges and advocates, outside of any democratic control. It is sad to witness that EU leaders favour announcement effects to the responsible measures that would make it possible to choose an innovation policy in favour of economic growth, European companies and citizens. But it's also comforting to see how attached the European Parliament is to democratic rules."
MEPs, and project rapporteur Bernard Rapkay in particular, had some really harsh words criticising the Council's decision. In his intervention asking to postpone the vote, he explained that making such changes would be a never-before-seen “scandalous violation” of the procedure. On this respect, he was backed by the legal affairs committee president, Klaus-Heiner Lehne, who pointed out that the Council's demand to remove articles 6 through 9 would “emasculate” the proposition, which would, as a result, go directly to the European Court of Justice because of its illegality5.
A new reading will therefore take place in legal affairs (JURI) committee, most likely next week. If the Council's position prevails, the European patent system would be out of control of any democratic body: its law-making power would be assumed by the national patent offices, in the form of the board of the European Patent Office (EPO), and not by parliaments, whether national or European. The EPO board would be given the executive power that comes with granting patents. The judicial authority would be exerted by the new unified patent jurisdiction, with its composition of specialized judges leaving little doubt in as to its alignment with EPO practices.
Gérald Sédrati-Dinet, April's patent advisor, recalls that “Contrary to the spirit and the letter of the European Law, the EPO grants tens of thousands of software patents. The harmfulness of these patents has been proven in the USA6. With the proposals for a unitary patent and the unified patent court, there would be nothing left to prevent Europe from experiencing such disasters.”.
The game is still on though, and new debates on the text will take place starting next week. Although the Parliament has just avoided an obvious source of illegality in the text, it remains that the current text is still unbalanced and tainted with legal uncertainties7. April therefore calls on citizens to stay mobilized in order to inform their MEPs about the threats this text poses, as well as the amendments we have proposed that could correct it. Tools to do so are available.
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 ofinformation an knowledge by private interests.
The association has over 5,000 members, using or producing Free Software.
Frédéric Couchet, Executive Director, email@example.com +33 660 688 931
Jeanne Tadeusz, Public Affairs Officer, firstname.lastname@example.org +33 1 78 76 92 82
Gérald Sédrati-Dinet, Advisor on Patents, email@example.com +33 6 60 56 36 45
- 1. For video snippets of the sitting: https://www.unitary-patent.eu/content/plenary-vote-postponed.
- 2. For more information, visit our dedicated website http://www.unitary-patent.eu/
- 3. Articles 6 through 8 of the unitary patent regulation project. See also Why the European Council has killed any workable EU patent.
- 4. See Fleur Pellerin's answers to the April Candidats.fr 2012 questionnaire: http://candidats.fr/post/2012/04/18/Reponses-de-Fleur-Pellerin-au-questionnaire-Candidats.fr-2012-de-l-April (fr)
- 5. For more information, see the European Parliament press release
- 6. James Bessen and Michael Meurer, professors at the Chicago University, have published an article proving that “patent trolls” — companies whose business model is based only on licence selling and patent litigations — cost 29 billion dollars to the US economy in 2011, most of it due to software patents. Cf. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210
- 7. The unbalances in the text and the legal uncertainties have been pointed out by Michel Rocard and Daniel Cohn Bendit in a column published by Mediapart The European Union under the threat of patents