This fall, criticisms are raining down on the proposed unitary patent [5] regulation, reenforcing the ranks of the supporters of its rewrite [6]. In its current state, this project of a European regulation [7] is shaky: uncertain legal bases, doutful efficiency, risks of bias from the future Court… But its major threat is the return of software patents, a legal construction that is highly nocious for Free Software. In October, the European Parliamentviolently opposed the Council [8] (which regroups the head of States and goverments) about this regulation, hence emphasizing the doubts regarding the viability of the text. More recently, researchers and lawyers have signed a motion to denounce the project adoption process [9]. Others keep publishing highly critical analyses [10]. It is now more than ever crucial to get involved and to join this objectifs by making our concerns about the return of software patents heard. European institutions need to revise its work.
Law professors and lawyers are expressing doubs regarding the European jurisdiction regarding patents on inventions.
"On the contrary and in the legitimate and democratic concern for legal security and public expenditure, we believe it is vital and urgent to throw light upon this precise legal issue of the very principle of a court with international authority and which excludes the jurisdiction of Member State courts."1
The motion signed by professors of law and lawyers denounces the lack of transparency in the adoption process. Following the negative opinion of the Court of Justice of the European Union (ECJ) delivered on 8th March, 2011, the regulation was amended, but the changes have not been published (access was only possible for MEPs). On July 11th 2011 the Luxembourg delegation to the European Commission raised some questions about the legality of the project and the responses have also not been published. This opacity of the procedure reinforces fears about the legality of the project and prevent a real public débate from taking place on such an important subject for European companies.
Max-Planck Institute proposes a new critical analysis of the project
" Notwithstanding the advanced political process, we believe it is indispensable to reconsider the content of the Unitary Patent Package afresh."2Max Planck Institute3 in a recent analysis highlights the imperfections of the unitary patent project. In comparison with the former projects, the Institute considers that this is a step back in term of quality of patent law and legal viability. Its complexity, its imbalances and the lack of legal certainty for innovation investments are underlined by the Institute.
The mobilization must continue
These many critics call a little more into question the viability of the project and hammer home the need of its revision. The project will likely be discussed at the European Council the 22 and 23 November, 2012 or at the Competitiveness Council the 10 and 11 December. Then the project will be discussed at the European Parliament. We must continue to rally and in order to voice these objections and to work on a system categorically rejecting any patenting software. Firms can rally by signing the resolution [11] made by April for this purpose.
- 1. the full text is available on http://www.unitary-patent.eu/content/motion-project-european-patent-court-law-professors-and-lawyers [9].
- 2. The full text is available on http://www.unitary-patent.eu/content/unitary-patent-package-twelve-reasons-concern-max-planck-institute [10].
- 3. « max Planck Institutefor the intellectual property and concurrence law », founded in 1966, defines itself as an economically and politically impartial center working on copyright and industrial law. It presents itself as a reputable commentator and a scientific adviser on the evolution of European patent law. For more information : http://www.ip.mpg.de/en/pub/publications/opinions/unitary_patent_package.cfm [12]