On 28 June 2012, Lionel Allorge, president of April, wrote to all MEPs about the proposal for a regulation implementing enhanced cooperation in the area of the creation of unitary patent [4] protection.
Here is the text :
Dear Members of the European Parliament,
You are going to vote during next week plenary session on a proposal for a regulation implementing enhanced cooperation in the area of the creation of unitary patent protection.
While the very idea of a unitary patent is not an issue by itself, the current proposal raises many problems, both in terms of its legal viability than for its damaging implications with regard to innovation.
The current text brings some legal uncertainties for European enterprises. In March 2011, the Court of Justice of the European Union has rejected the previous draft because it was not compliant with the Treaties. The corrections proposed by the Commission in the current proposal are covering only a subset of CJEU's criticisms. Therefore, the current draft agreement is likely to remain not compliant with the Treaties.
Beyond the legal uncertainty for European enterprises, the mere architecture of the proposed unified patent court is questionned. Indeed, judges sitting in this unified patent court would be “specialised” and no appeal to an independant court is forseen. This kind of framework – which does not exists for any other area of European Law – is prone to install a bubble where only a small group of patent specialists would be judges in their own cases, at the expense of general interest and without needed checks and balances.
The text should encourage a strong innovation and reinstate a political leadership on the issue of patents. Notably, the substantive patent law should be handled by the European Union and what is not governed by patent law, as is software, should be clearly excluded from patentability, for the sake of legal certainty of innovative European enterprises.
You will find at the following address our detailed analysis of the drawbacks and problems raised by the current text [5].
Some tabled amendments on the unitary patent regulation can fix these drawbacks. I strongly encourage you 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 case these amendments are not adopted, we recommend to reject the proposal. For a detailed analysis, you can refer to:
https://www.unitary-patent.eu/content/voting-recommendations-plenary-amendments [6]
I am entirely at your disposal for any further information, yours sincerely.
Lionel Allorge, April's President