Unitary patent: the European Commission responds to a written question and highlights legal issues

On December 2nd, 2013, the European Commission responded to a written question from a Member of the European Parliament, Amelia Andersdotter, who had requested details on the Unified Patent Court (UPC).

Although the answers are generally vague, an analysis of their content highlights once more the legal uncertainty of the UPC Agreement's framework.

Amelia Andersdotter had put two specific questions to the Commission: (i) whether the Unitary Patent affected European Union regulations and (ii) whether the UPC Agreement would violate the EU’s exclusive competence.

In his response, Commissioner Barnier ducks the issue, without however hiding the legal problems with the agreement.

On the first point, he explains that EU law prevails over the UPC Agreement, but in order to ensure the coherent implemention of both the agreement and the European law, the latter —more specifically the so-called “Brussels I Agreement"— must be modified before the UPC Agreement comes into effect.

In other words, the Agreement —to which the UE is not a party— still requires European law to be modified. This adds to the legal uncertainty of the framework, since we have here an international agreement which does not involve the EU, and yet modifies its legislation.

On the second point, the answer is briefer and amounts to say that, in those domains that are within the exclusive competence of the Union, Member States can make that type of agreements if they are authorised by the Union. This assumes two things which are far from being legally obvious: (i) the domain that the agreement is dealing with is indeed within the exclusive competence of the Union, and (ii) an authorisation has been issued for the implementation of the framework.

Yet, no formal document authorising Member States to formalise that type of agreement has been issued by the UE, even though the matter was indeed discussed.

In conclusion, this response does not clarify the legal issues which keep flawing the Unitary Patent. As the problems of the Unitary Patent are not limited to a legalistic nature, but first and foremost represent a danger to innovation, and to free software in particular, this non-response from the Commission emphasises the need to reconsider the project.