Eva Lichtenberger, a Green/EFA Member of the European Parliament, sent on
Tuesday, Dec 4th 2012 an open letter to all MEPs, warning them of the threat
posed by the unitary patent and asking them to postpone the vote, in order to
have a real debate and ensure the legality of the patent package.
OPEN LETTER TO THE MEMBERS OF THE PARLIAMENT
the European Patent Package is set to be
debated and voted in first reading in the December despite the fact that
the European Council amended the first reading agreement reached with
the Legal Affairs Committee, and no subsequent negotiations have being
held to discuss this.
In spite of concerns about the compatibility of the Patent Package with
the Treaties, the Legal Affairs Committee refused my request for a
written opinion from the EP's legal service. The European Court of
Justice is also currently considering the legality of the enhanced
cooperation on the patent package, with a ruling of Advocate General
expected on 11 December: the same day as the vote. It is quite likely
that the opinion will conclude that the procedure is not compatible with
Against this background, it would seem appropriate for the Patent
Package to be removed from next week's plenary agenda and postponed
until after the legality of the procedure has been verified, at the very
least. However, the JURI rapporteurs prefer to go ahead, disregarding
concerns for the rule of law.
If the Patent Package is adopted the EU would be delegating competence
and powers in this area to the European Patent Office (EPO), an extra-EU
institution. The "compromise" imposed by the Council gives the EPO the
power to grant of unitary patents without any effective review by the
European Court of Justice (ECJ), which would be largely excluded from
the jurisdiction on EU patents. There would be no possibility to appeal
decisions of the new Unified Patent Court before the ECJ. The Unified
Patent Court could just ask the ECJ to give preliminary decisions,
while leaving the final decision [on patent law] with the Unified Patent Court.
Furthermore, the European Parliament would give up its rights and
competence to co-legislate changes to the patent regime, as the content
of the unitary patent no longer would be decided upon in an EU legal
act, but in an international agreement among the Member States.
Among experts, there is a strong presumption that the regulation does
not comply with Article 118 TFEU, which gives the EU competence to
create intellectual property rights and thus lacks a correct legal basis
in the Treaties .
Instead of laying down clear rules for the internal market, the package
at hand would create a very complex system of rules to be applied by the
new Patent Court. This system would be incoherently spread across a
myriad of legal regimes: EU law, national law and law based on
conventions outside the EU framework. This could lead to increased
fragmentation instead of harmonisation, to the detriment also of
enterprises and economic operators.
There are also serious concerns as regardsthe substance of patent law.
Within the EU there are several national restrictions on the application
of patents in the area of biotechnology: such as on patents on human
gene sequences, provisions to protect the interests of farmers, such as
exemptions for breeders, etc. These restrictions have been deleted from
the regulation and are only partially taken into account by the Draft
Agreement. Thus ignoring the European Parliament's call "to ensure
that the EU will continue to apply a comprehensive breeders' exemption
in its patent law for plant and animal breeding as expressed by the
European Parliament resolution of 10 May 2012 on the patenting of
essential biological processes".
Alongside these serious issues on the merits of such a potential
compromise, the way it is proposed by EU institutions raises concerns
both for citizens and for enterprises.
The Greens/EFA group will table some amendments which seek to
unambiguously define a new patent title for the EU compatible with its
legal basis (Article 118 TFEU) and ensure that the patent court is fully
integrated in the EU judicial and institutional framework.
The Greens/EFA group will also table amendments to exclude the patenting
of plant and animal strains and breeds used in agriculture and some
rules in line with Parliament's previous positions defining limits to
software patents, in order to contribute to having a genuine unified
enforcement of European patents with unitary effect.
Thank you very much for your consideration
 The Patent Package consists of: - a
Regulation on the European patent with unitary effect and an Agreement
on a Unified Patent Court for litigation on infringements and revocation
of European and unitary patents.
 This has been clearly stated by the Max
Plank Institute for Intellectual Property and Competition Law: "Article
118 para. 1 TFEU authorizes the European Parliament and the Council to
establish in accordance with the ordinary legislative procedure measures
for the creation of European intellectual property rights in the context
of the establishment and the functioning of the Internal Market. (...)
it has a particular political objective of advancing market integration,
which the Union legislator cannot simply delegate to international
consensual agreement among Member States. Such delegation would
undercut both the institutional rules,( .] and the political autonomy of