There are serious doubts that the legal basis of the current proposal are legally wrong.
There is no EU patent, just the usual EPO European patent bundle with a "unitary effect" flag, that makes them enforceable throughout the territories of participating Member States, without paying validation/renewal taxes in each and every designed national patent office.
The "unitary effect" of these patents is just a fiction as long as the jurisdiction in charge of the enforcement of such patents has not been
Now that, despite alllegal, political and economicissues, the European Parliament has approved the regulation on the unitary patent, just as anticipated, it is time to move away from the legislative battle. The unitary patent has still a long way to go before becoming applicable. It is likely that it will be nothing more than a stillborn child. Meanwhile, the threat is hovering over European innovation and growth. It is time now to see whether and how Gandalf's magical powers can overcome the dark forces of Mordor.
Now that all amendments and the voting list have been published, it is quite easy to anticipate what will happen on Tuesday December 11th, 2012, during the plenary vote of the European Parliament (EP) on the unitary patent regulation. Nevertheless few people would find a way to understand what will exactly be voted. And it is likely that the vast majority of Members of the European Parliament (MEPs) won't know themselves what is hiding behind the buttons they will push on. So here's the story behind shiny amendments numbers.
While the regulation on the unitary patent is about to be voted by the European Parliament during its plenary session on December 11th 2012, its content is deceiving. It is crucial that Members of the European Parliament (MEPs) are made aware of issues surrounding the unitary patent. We are proposing here a set of questions that MEPs should have in mind in order to vote in accordance with theirs convictions.
We have been informed that the Committee on Legal Affairs (JURI) of the European Parliament will hold an extraordinary meeting on Monday, November 19th, 2012 at 19.00 with an exchange of views on the state of play with regards to the unitary patent package. Discussions are likely to focus on a compromise found with the Council about a potential solution to the controversial removal of Articles 6 to 8 from the regulation on the unitary patent. Although the content of such compromise is not publicly disclosed, we have every reason to think that it would still not comply with EU law. Moreover, such harsh and secrecy raises serious doubts about any chance for the coming result to come up to a sound solution.
UPDATE: The text of the compromise has now been published by PCInpact. It confirms our analysis that it is not compliant with Art. 118 TFEU.
Tuesday, October 16th, 2012, the Committee on European Affairs of the French National Assembly held a hearing with Gérald SÉDRATI-DINET, voluntary advisor for the April on patent issues, in the presence of members rapporteurs on this project, Ms. Audrey LINKENHELD, Socialist MP of the 2nd district of the North, and Mr. Jacques MYARD, Conservative MP of the fifth district of Yvelines.
For a couple of years, patents have hit the headlines with companies struggling to buy out portfolios of bankrupted competitors, with more and more ridiculous obvious patents granted by patent offices, or with “trials of the century” going on and on. This inflation of concerns around patents has culminated on August 24th, 2012, with Samsung being found liable for infringing some of Apple's mobile patents by a Californian jury. This over one billion dollars fine has given concrete expression to Steve Jobs' testimony, as laid down in his posthumous biography: “I’m going to destroy Android, because it’s a stolen product, I’m willing to go thermonuclear war on this.”
This article does not recount such events. Instead, its purpose is to show with a particular Apple's software patent, which was recently successfully enforced before a German court, how such a thermonuclear patent war is threaten to explode in Europe, would the current project about a unitary patent be adopted.
On Friday June 29th 2012, the European Council has reached an agreement between heads of State and government over a unitary patent and a flanking unified patent court. But, under the pressure of British government, such a deal was done at the expense of removing any overview from the Court of Justice of the European Union over patent law, through the deletion of provisions in the regulation on the unitary patent. But the Union law does not allow for such a move. Therefore the agreement reached by the European Council is doomed to be nullified.
A short time after the Commission has published its proposal for a regulation on the unitary patent, we have raised1 some serious concerns with regard to the very legality of the regulation and to the political issue of the governance of the European patent system. Now, some academic studies are confirming all issues we've raised one after the other. Such serious flaws cannot be ignored anymore and need to be addressed by the EU legislator. Failing to do so, the unitary patent would unavoidably be no more than a stillborn child.
On Tuesday October 11st 2011, the Committee on Legal Affairs (JURI) of the European Parliament held a hearing on the unitary patent regulation and the associated agreement on a unified patent court. Although people heard on this occasion, who were all closely tied to the “patent microcosm”, have had the opportunity to expose their views on the project, some Members of the European Parliament (MEPs) have pointed out the major issue at stake: the degree of autonomy the European Union (EU) wants to leave to the European Patent Office (EPO).