Unitary Patent: Europe keeps burying its head in the sand

On May 30th, 2012, the Competitiveness Council of the European Union was expected to discuss the project of a unitary patent. Although the contents of the discussions are unknown, their result – a failure to reach an common agreement – points out how problematic this messed-up project is. Therefore, April calls once again the French government and Fleur Pellerin to reject the current text. The association also asks that discussions materials be published in order to shed light on every issue of this project.

The unitary patent is a project launched by the European Commission in order to create a single patent title for 25 Member States of the EU (Italy and Spain have declined to be involved), together with a unified jurisdiction, which would have the sole competency for patent litigation. If the idea of a single patent title is not an issue in itself, its implementation is raising concerns for April: the project gives governance on patent policy to the European Patent Office (EPO), whose lobbying in favour of software patents is well-known. Moreover, the envisaged patent jurisdiction would be composed by "specialist" judges, i.e. including not only professional judges but also technical patent pratictionners, coming from the same microcosm than the EPO, without any recourse to an independent court. Put differently, such an architecture would amount to letting a small group of players to govern patent law, without any democratic checks and balances1.

Many stakeholders have expressed their disagreement against this project, because of the damages it implies for innovation, for companies2, and for the compliance to democratic checks and balance or fundamental rights as well. Some firms, lawyers, representatives of civil society3 have raised concerns. In Denmark, an alliance between both left-wing and right-wing groups has declared that they will reject a potential agreement on the unitary patent, which would require the Danish government to hold a referendum prior to adoption of the text4.

Regarding the French stance, April has had several discussions with some members of Fleur Pellerin's staff, who have confirmed the minister's commitments she had taken in her answer to Candidats.fr questionnaire against the dangers of the current text. Following a memo we sent them, they have guaranteed in particular that the minister would make sure that the current balance is respected, and that the French governement would maintain its opposition to current practices of the European Patent Office.

Nevertheless, it's hard to give full credit to the Commission's and to the Danish Presidency of the Council's recurring announces who persist in stating that the only problem to solve regard the unified direction location 5, thus ignoring every question and alert raised by many actors. Alas, the lack of transparency around the project restricts any further knowledge: neither the multiple countries positions, nor the debates, nor the working drafts are public; which restricts any in-depth analysis. April requested full disclosure of these documents and calls for more transparency so that everyone can be truly informed about the current project.

April warns once again of the hazards raised by the unitary patent and calls the French Government and the European institutions to publish the documents in order to ensure transparency, and also calls to reject the current project, since it represents a threat to innovation, especially to Free Software. The next discussions should take place within the European Summit of 28 and 29 June 2012, so there is still time to act.

See also the following interview of Gérald Sédrati-Dinet and a representative of the EPO by Audrey Tilve, which we reproduce by courtesy of Euronews