Unitary Patent: Burrying Your Head In The Sand A Popular Policy In France Too
Paris, November 14th, 2012. Press release.On the 13th of November 2012, the Committee for European Affairs of the French Parliament (Assemblée Nationale) was scheduled to discuss the Unitary Patent with the presentation of a report by MPs Jacques Myard and Audrey Linkenheld. Instead, what we witnessed was the European Commission and the European Patents Organisation's old refrain about the political importance of creating a unitary patent. The European Court of Justice's likely veto regarding this project due to its incompatibility with the European Union's fundamental treaties was hardly mentioned. April deeply regrets the shortsightedness and complete total lack of judgement from the MPs who presented the project: not only the important role of France in that process, but also the risks and dangers introduced by the Unitary Patent regarding innovation and democratic control have all simply but disapeared.
Jacques Myard's speech was off to a good start though, with a reminder of patents' anti-competitive nature. Patents are used as a weapon by many companies, beginning with the software industry1. The rest of his speech however focused on the fact that the project has been under discussion for a long time and how urgent it was to come to an agreement, even if it might be legally unstable. According to Mr Myard, patents are political, not practical, as the current system already covers 95% of needs. He also added he had strong doubts regarding the Unitary Patent's capacity to lower costs.
Audrey Linkenheld's intervention focused on France's place in the new unified jurisdiction: French remains one of the reference languages and the jurisdiction's head remains in Paris. According to her, this is sufficient justification to accept the project as a whole. The MP also welcomed the fact that the substantive law applicable to patents in the European Patent Convention (EPC) would not be modified, creating a hybrid and likely illegal structure according to European law. Regarding this aspect, one can also note that the British European Scrutiny Committee, which has the same role as the Committee on European Affairs in France, stressed these modifications' illegality 2, which were also rejected unanimously by the European Parliament.
Doing so, she purposely turns a blind eye to the lack of any democratic control and the risk of software patentability created by the new court system that will implement these provisions 3.
In fact, during the Q&A session, she welcome the fact that with this new setup the European Patent Office is not subjected to any democratic control: on the contrary, the new system excludes any possibility of redifining what is patentable, even though the European Patents Organisation's Enlarged Board of appeak actually asked the legislator to act against the Office's attitude of patenting anything and everything.
“Such willfull denial is worrying, especially as many voices ranging from scholars, such as the Max Planck Institute, businesses and even the European Economic and Social Committee have denounced the project's dangers. The MPs know of these dangers, as Gérald Sédrati-Dinet, volunteer patent expert with April, has been auditioned, but they would rather bury their heads in the sand. For the sake of a political symbol, we are putting at real risk innovation and the right to code In Europe by putting in place an anti-competitive system with no democratic safeguards.” said Jeanne Tadeusz, public affairs officer at April.
Gérald Sédrati-Dinet, voluntary counsel on Patents at April, concluded: “The presentation of this report on the Unitary Patent is revealing of the parochialism European policy makers wallow in. In the end, the substance of what is decided, the legality of the text itself is of little importance. Since Paris won the Unified Patent Court's central division seat — that it will nevertheless have to share with London and Munich and submit to the Appeal Court based in Luxembourg — France comes out a winner. It's too bad the text dramatically inceases the danger of software patents in Europe. At best, it's rather inconsistant and inconsequential from elected reperesentatives of the French European Affairs Committee. At worst, it is simply unnacceptable for citizens who feel truly European and for businesses who really wish for an EU patent!”
However, the ball is still in the Legal Affairs Committee's court, who have several times refused the worst violations of European law in this affair and must now voice its position before any agreement can be made. It therefore remains crucial to reach out to European MPs to inform them about the dangers the Unitary Patent represent and raise their awaereness about the many critics of the current projet, despite the denial they are still subject to today. Companies can also sign the resolution proposed by April to this effect.
- 1. For more information see the following article "How the Thermonuclear Patent War Would Explode in Europe With the Unitary Patent".
- 2. The Committee's report is available on its website: http://www.publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/1799/179902.htm.
- 3. For more information, see our article Unitary Patents and Software Patents, a Case Study.