More patents, less democracy: the unitary patent strikes back in the European Parliament

The patent issue is back on the European stage with the examination on Thursday, January 20th 2011 by the JURI committee1 of an enhanced cooperation project. Such a project would allow a few countries to decide all on their own of a new unitary patent which would escape all democratic control. Such a project entails many risks, like the reintroduction of software patents.

Setting up such an enhanced cooperation2 on the unitary patent3 is promoted as a solution to the apparent complexity of negotiations: the question of multiple languages has been one of the critical points of this issue since 19994. Nevertheless, this does not explain the haste surrounding this project: while the question has been debated for over a decade, the planned adoption schedule suggests an urgency that is by no means justified.

The project's bearers5 seem to want to act before the CJEU6, although routinely queried, is able to express its position on the matter. While the leaked position of the CJEU's Advocates-General opposes the project7, April is worried by this forced attempt to adopt the text, which leaves no time for the Members of Parliament to obtain sufficiant information nor for the civil society to react in public.

The risk is even greater considering that the proposed text follows a structure similar to that of the European Patents Office (EPO), even though they are two independent organisations8. The latter has indeed authorized many illegal patents, some of which on software. Its drifts have been denounced many times, so many that the EPO's Enlarged Board of Appeal itself called the lawmakers to take the matter back into their hands9. Creating a similar structure, without even trying to fix the well-known and identified issues while removing any possible oversight represents the real danger for innovation today.

For further information, the Foundation for a Free Information Infrastructure also published a open letter to Members of the European Parliament.

• 1. Committee on Legal Affairs of the European Parliament
• 2. The text to be voted is available on the European Parliament's website.
• 3. Unitary patent, or patent of the European Union, is an ancient project of a unified patent title across the entire European Union. As of now, the patent system in Europe is controlled by European Patent Convention, an international agreement signed by all EU member states, as well as other countries. Each European patent that is accepted is then converted into national patents in member states according to the applicant's request, and is subject to fees in each signatory state of the Convention where patent validity is applied for. The project of a unitary patent would instead boil down to a single patent application leading to a single patent immediately valid in all EU member states.
• 4. According to the Lisbon treaty, creating a EU patent today would require the unanimity of the Council and approval by the European Parliament to solve this issue of the patent's language.
• 5. The project reporter is Klaus-Heiner Lehne, who already distinguished himself on European patents.
• 6. Court of Justice of the European Union.
• 7. The Advocates-General opposition is mainly based on the lack of control by any independent court: the only possible claims currently considered are internal to the organization.
• 8. A project to merge both structures has also been mentioned, but represents real legal complexity, the European Union and the European Patents Convention being two different agreements, covering different countries.
• 9. For more information see April's analysis on the decision for the EPO Enlarged Board of Appeal (in French)