Unitary patent: an undone “done deal”

On December 1st 2011, the Committee on Legal affairs of the European Parliament has published a press release [2] welcoming with pride that negotiations about the unitary patent have succeeded in reaching a « final agreement » between the Council of the European Union and rapporteurs of the European Parliament. However, issues already raised by April [3], including questions on the legality of the adopted solution1 [4], are not solved yet. Concerns about powers left to the European Patent Office, which is well-known for its attempts to legalise software patents2 [5], have neither been addressed.

Update: the compromised agreement has been leaked [6] and confirms our analysis that none of the serious issues with regard to the legal basis of the regulation have been addressed and that request from the patent microcosm to get the European Court of Justice as far away as possible from substantive patent law has been rejected.

The lack of improvement about these issues is worrying for several reasons. Indeed, in the course of these negotiations in camera, the patent microcosm [7] has made much of imposing the setting up of a jurisdiction of exception, calling to rescue Lord Jacob [8], whose arguments have been forwarded by the Swedish liberal Member of the European Parliament, Cecilia Wikström3 [9]. The introduction of such a jurisdiction would amount to left t the patent microcosm any power to develop a case law with regard to substantive patent law, bypassing legislative bodies, and would allow it to legalise software patents, which have been proved to deter innovation, specially for Small and Medium Enterprises. This would also question the right to a fair trial, since the same people could be both judge and be judged.

Moreover, the project raises several issues on its compliance with Union treaties and, would it be judged to be not compliant, this would create a major legal uncertainty. The problem is as follows: in the press release of the European Parliament, it is claimed that the unitary patent would be a patent title of the European Union, an ”EU patent”, which implies that rules governing unitary patents shall be subject to Union law. But there is no provision implementing this requirement in the current agreement. We have proposed some amendments [10] fixing this shortcoming, but, according to our information, they have not been looked at during negotiations that have result to this “done deal“. It is therefore of the utmost importance that such amendments be voted by the European Parliament, that has not yet given its opinion. The vote of the European Parliament should not amount to a mere formality, giving its rubber-stamp to an agreement reached behind closed doors. You are encouraged to contact Members of the European Parliament [11], before the vote in the Committee on Legal Affairs, on December 20th, 2001.

• 1. [12] Fore more informations on legal issues, see the analysis of the legal basis of the regulation on the unitary patent [13], or the letter [14](in French) sent by April to the director of the legal service of the Council.
• 2. [15] For more information on the connection between the unitary patent and software patents, see "Unitary patent and software patents: a case study" [16]
• 3. [17] For more information, see "Unitary Patent: the debate will go on in secret" [18].