Unitary Patent: vote by European Parliament ITRE Committee

On November 23rd, 2011 the ITRE (Industry, Research and Energy) Committee of the European Parliament has given its opinion on the unitary patent, by voting in favour of the reports1 on the creation of a unitary patent and on the unified jurisdiction. The vote was characterised by a lack of enthusiasm and a blind conformity with the rapporteur's position, Alajos Mészáros. It should however be recalled that the ITRE committee was giving a mere opinion, and that it is the JURI committee that is responsible for this matter. On November 22nd 2011, the JURI committee decided to give a mandate to the rapporteurs for negotiations behind closed doors.

The only positive aspects of this vote lie in the inclusion of provisions that guarantee a minimum right to a fair trial. This applies to amendment 6 to the resolution on a unified patent jurisdiction, which underlines that in order to avoid any conflict of interest, the judges of this unified and specialised court cannot be also members of the European Patent Office (EPO) nor of a national patent office and should have left such office for at least six months2. Likewise, amendment 6 to the regulation on the unitary patent explicitly recalls that the latter shall comply with Union law3.

These minute improvements should not hide the fact that many provisions of the regulation on the unitary patent are questionable, in particular because of the important powers left to the EPO. This international body is indeed known for having attempted to legalise software patents, beyond any democratic control4. But more generally speaking, the project also raises concerns due to its non-compliance with the fundamental principles of the Union. And this morning's vote is not meant to reassure EU citizens and enterprises: Members of the ITRE committee have thus voted some amendments which are not compliant with the Treaties of the Union 5.

The detailed outcome of the vote with regard to the regulation on the unitary patent can be accessed on the April's amendments analysis page.

The next step will be a new vote of the Committee for Legal Affairs (JURI) on December 20th, 2011. Until then, do not hesitate to contact Members of the European Parliament (MEPs) to inform them of the threat caused by this proposal. The outcome of the vote in JURI committee will be especially important since it will represent the official position of the Committee responsible for the matter. It will hence have much influence on the final vote in plenary session, which should happen in the first two months of 2012.

• 1. Reports on the unitary patent regulation and on the unified jurisdiction can be accessed on the European Parliament's website.
• 2. Amendement 6 by Philippe Lamberts, in the name of the Greens/EFA group: "3a. Suggests that Members of boards of appeal of a national patent office or of the EPO shall not be eligible to serve as a judge of the court until the end of a 6-month period after the termination of their previous function so as to guarantee their neutrality".
• 3. Amendement 6 by the rapporteur, Alajos Mészáros (Slovak member of the conservative group EPP): "The rights conferred by the European patent with unitary effect shall accord with rights conferred by the Treaties and Union law […]".
• 4. For further information, see for instance the conference (in French) by Gérald Sédrati-Dinet, voluntary counsel for April, on the unitary patent. The slides are also available in English.
• 5. Such as the set up of a Select Committee within the EPO (in theory composed of governments' representatives, but in fact heads of national patent offices) that would be responsible for laying down the redistribution key for fees.