Introduction on European Parliament's works concerning an enhanced cooperation on unitary patent

On Thursday, January 27th 2011, the European Parliament Legal Affairs committee gave its consent to an enhanced cooperation procedure on the unitary patent. This was just the first step towards the approval of the procedure, which needs to happen during a plenary session, which should be followed by a regulation from Council and Parliament.

The project to create a unitary patent is the latest of many such attempts made over nearly forty years. The Luxembourg Community Patent Convention of 1975 has never been ratified. The Luxembourg Agreement of 1989 has never come into force. The Commission's proposal of 2000 on the Community patent was blocked in Council. Finally, works originally engaged in 2007 have failed to reach unanimity in Council. That's why what was called first "Community Patent", and then "European Union Patent" after the entry into force of the Lisbon Treaty, is now just named "unitary patent". Since the required unanimity needed to have a patent protection all across the EU seemed to be out of reach, the Council has accepted this failure in the end of 2010 and resigned itself to pursue the project just between Member States who want to participate to the enhanced cooperation.

Actually, the project has two sides. One is the creation of the unitary patent which would allow anyone, whether European or not, to apply for a patent that would protect her alleged invention all over the territory of participating Member States to the enhanced cooperation. Currently, the European patent, delivered by the European Patent Office (EPO) is conversely a bunch of national patents that the applicant still have to pay renewal taxes for and to enforce before national courts, on a country per country basis.

The other side is to set up a unified jurisdiction that would be competent for litigations both on current European patent and on future unitary patent. This side has been worked on Council since 2007 and should result on an international agreement between the EU, the Member States and other countries (like Turkey or Switzerland) that have signed the European Patent Convention (EPC), i.e. the set of rules governed by the EPO defining what can be protected by a patent and how.

This complex machinery raised some legal questions about the conformity of the project with EU Treaties. On 2009, the Council of EU has referred the question to the European Court of Justice (ECJ) which is expected to give its opinion in the beginning of March 2011. But in August 2010, the opinion of the Advocates General of ECJ has been leaked 1. The Advocates General notably pointed out that, according to the project, EPO legal acts (grant or refusal of a unitary patent application) are not supposed to be appealed before an independent Court, and that the envisaged new unified Patent Court has no obligation to respect ECJ rulings, Fundamental Freedoms, nor general principles of Union law like the principle of proportionality.

Although it is not bound by the Advocates General's opinion, it is likely that the final ECJ's opinion will address some legal issues that could question the basic foundations of the unitary patent project, or even the validity of the whole project. Therefore, before doing any choice on unitary patent, the European Parliament would be wise to wait and examine this opinion.

And taking time to consider all pieces of information is crucial for the European Parliament. Indeed, it is the first time in forty years that the only elected body inside EU has the opportunity to give a binding opinion about this project.

What is at stake is actually the whole European innovation policy. In the current context of European Patents, EPO is still the major player in this field, yet it is is completely outside of EU reach. As pointed out by Dr. Ingrid Schneider2: since EPO has all power on granting European patents and since EPO's internal Boards of Appeal are giving their own decisions without any oversight by an independent Court, this amounts to EPO interpretation of EPC, i.e. an "implicit policy-making masked as mere technical and legal administrative execution of law".

Drifts by EPO have already been largely denounced: "Whilst being basically a patent granting office the EPO has ambitions to steer patent policy at European and international levels. It has a business culture of its own with very little understanding for what happens in Brussels in a more global context. Initiatives from Brussels implying changes to the existing multilateral European patent system are considered as an attack on the holy writ. The EPO has close ties with national patent offices and far less with the ministerial level in Member States. Recently the EPO has become subject to growing criticism by MEPs and various EU Member States for a lack of political accountability.3 These drifts have notably led to the controversial granting of tens of thousands of so-called software patents, while the European Parliament has overwhelmingly rejected a directive on this matter in 2005.

When the ECJ's opinion is published, it may contain useful suggestions on how to add the necessary oversight to such a system. The European Parliament is currently supposed to vote on February 15th while ECJ's opinion is expected on March 8th. Such an issue deserves to wait one or two weeks! And postponing the vote would even comply with EPO's own confession: "When judiciary-driven legal development meets its
limits, it is time for the legislator to take over"4.

See also: