The threat of the unitary patent: an open letter to the Members of the European Parliament

Paris/ Brussels, 1st February 2011. Press release.

April, End Software Patents and the Foundation for a Free Information Infrastructure (FFII) sent, on 27th January 2011, a joint open letter to all Members of the European Parliament to express their concerns regarding the proposal for enhanced cooperation on the unitary patent, and asking them to postpone the vote until the European Court of Justice publishes its opinion regarding compatibility with the EU treaties.

The proposed unitary patent raises important concerns: such a system would require a central court, and the European Patent Office (EPO) receives additional power and reduced oversight in the proposal currently supported by the Commission. The excesses of the EPO have been repeatedly highlighted, particularly regarding software patents.

“The Parliament's review of the bill is being rushed without allowing for substantial debate, in spite of the fact that the Commission took 40 years to discuss this proposal! It is crucial for MEPs to get all relevant information before voting on such a text”, declared Jeanne Tadeusz, public affairs officer at April. “We are calling on MEPs to wait for the publication of the CJEU opinion to ensure an informed debate on the issue.”

Ciaran O'Riordan of End Software Patents adds: “Every patent describes an idea you can't use without authorisation. If patents are only written in English, most EU citizens will be subjected to legal restrictions in a foreign language. Big companies will hire multilingual lawyers, but for individuals and SMEs, developing products and innovating will be like walking a minefield. This proposal needs parliamentary review.”

The open letter:

Dear Member of the European Parliament,

We, as nonprofit organizations acting in the field of patent policy, are concerned about the fast-tracking of the proposal for enhanced cooperation on the unitary patent (NLE/2010/0384), which was voted in JURI commission on January 27th. Given that the Court of Justice (CJEU) will soon publish its opinion on the legality of a proposed jurisdiction governing the settlement of litigation related to the unitary patent and given that this proposal involves transferring legislative power from the EP to the European Patent Office (EPO)1, we believe it would be sensible to wait for the CJEU's opinion so that there can be an informed debate before deciding this important issue.

The current proposal for a unitary patent2 requires a unified jurisdiction with a central court. According to the Commission, the current proposal is similar to the European and EU Patent Court (EEUPC) proposal. The CJEU is reviewing the EEUPC proposal but has not yet released its opinion regarding compliance with the EU Treaties. This opinion is far from a formality: the Advocates General of the CJEU were highly critical of the project and deemed it incompatible with the EU Treaties3, because the new patent court rulings would have a direct impact on EU law without any control from EU institutions.

Further, the current proposal involves delegating the entire pre-granting procedure for the unitary patent to the EPO, whose patent-granting excesses have been denounced repeatedly. Existing outside of the EU, the EPO already has very little oversight. The main democratic control that exists is that the EP still has the competence to legislate. The EPO's own Enlarged Board of Appeal acknowledged the need for a real legislative body in the patent system in an opinion published in May 2010 on the topic of software patents, saying that “When judiciary-driven legal development meets its limits, it is time for the legislator to take over”4. When the CJEU's opinion is published, it may contain useful suggestions for how to add the necessary oversight for such a system.

We respectfully request that the European Parliament postpone the vote regarding enhanced cooperation until publication of the CJEU's opinion.


Tangui Morlier, April (President)

+33 1 78 76 92 82,

Ciaran O'Riordan, End Software Patents (Executive Director)

+32 487 64 17 54,

Benjamin Henrion, FFII (President)

+32 484 56 61 09,

About April

Founded in 1996, April is the main French advocacy association devoted to promote and protect Free/Libre Software. With its 5476 members (5004 individuals, 472 businesses, associations and organizations), April is a pioneer of Free Software in France. Since 1996, it is a major player in the democratization and the spread of free software and open standards to the general public, professionals and institutions in the French-speaking world. It also acts as a watchdog on digital freedoms, warning the public about the dangers of private interests keeping an exclusive stranglehold on information and knowledge.

April is a registered interest representative (ID: 30399252478-91) in the EU.

About End Software Patents

Since 2008, End Software Patents (ESP) works to eliminate patents which prevent the development or distribution of software. ESP participates in government consultations and court cases, and provides information resources to enable local citizens to participate effectively in these processes. For more information on participating in the project, or to access its knowledge base, please visit its website at:

About FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.