European unitary patent: the Association for the promotion and defense of free software and 400 companies “mobilised against the project”, an AEF news

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After the European Parliament has decided, in early July 2012, to postpone its plenary vote on the unitary patent, and hence after that its committee on Legal Affairs (JURI) is about to to reconsider the case, AEF, a specialised French press agency, has realeased three news taking stock of the current situation. Courtesy of AEF, we translate here the second news, which recounts an interview of Gerald Sédrati-Dinet, adviser on patents for April, a French advocacy association devoted to promote and protect Free/Libre Software. You can also find an deciphering of the legislative process, and a revelation of a report by Parliament's legal services.

European unitary patent: the Association for the promotion and defense of free software and 400 companies “mobilised against the project”

Anne Roy
Field : Research and Innovation
Category : News - International - Intellectual Property - European Union

“For April (French Association for the promotion and defense of free software), the mobilisation against the draft regulation on the European unitary patent focuses on the issue of software patents, which are the worst threat that could weigh on free software”. This is what said to AEF, on Friday, September 7th, 2012, Gérald Sédrati-Dinet, in charge to monitor the negotiations on the unitary patent for this association, founded in 1996, which defines itself as “a major player in the democratisation and the spread of Free Software and open standards to the general public, professionals and institutions in the French-speaking world”. “Software patents are prohibited under EU law, even though the EPO (European Patent Office) continues to grant software patents for the last twenty years”, says the engineer, who follows the issue for April for about a decade. “However, when you develop software, it combines a multitude of mathematical 'bricks', which, if they are patented, cannot be arranged anymore. In the field of free software, it is small businesses that mostly do not have the means to pay, or use cross licenses as do large companies like Apple or Samsung”.

The European Patent Convention, also called the Munich Convention, ratified in 1973, defines that, among other things, sofwtare is unpatentable, “as long as the patents relate to software as such”. “And the EPO has an interpretation of this point, which we believe is contrary to the spirit of the text”, Gérald Sédrati-Dinet develops, recalling that “in 2003, a draft directive on the patentability of software has attempted to change this but it was rejected by the Parliament in 2005”.

Thus, April has launched a petition, which on September 13th, 2012, has been signed by 460 European companies mobilised against “software patents and the proposal on the unitary patent”.


“We are concerned that the regulation on the unitary patent, as agreed in December 2011 by the negotiators of the Council, the Commission, and the Committee on Legal Affairs of the European Parliament, leaves any and every issue on the limits of patentability to the EPO's case law, without any democratic control or review by an independent court”, the text argues. “We urge MEPs to adopt amendments which clearly state that the EPO's decisions are subject to a review from the Court of Justice of the European Union, and which reaffirm the rejection of software patentability, as expressed by the votes of the European Parliament on September 24th, 2003 and July 6th, 2005”.

“We're not opposed to the unitary patent in absolute terms”, said nonetheless the adviser. “It may be easier, maybe cheaper, carry a more federalist approach than the current EPO. But we mobilised against software patents and we are also against the proposal to give more power to a body that does not depend on the European institutions”.

The current draft unitary patent is a “package” consisting of three texts: a regulation putting in place a system of unitary patent protection, a second regulation that determines the language of the unitary patent, and an international agreement creating a unified patent jurisdiction. However, on June 29th, 2012, the European Council, the Heads of States of the EU have decided to remove from the first part, however, adopted in December 2011 in a “trilogue” (informal tripartite meeting) with Parliament and the Commission, three articles (6, 7 and 8) which further strengthen the independence of the patent court with regard to the Court of Justice of the EU (AEF No. 168965 and 169446) and our decyphering: No 171462). This court is composed of specialised patent judges, employees of the EPO, which is financed through taxes on patents that it grants.

For Gérald Sédrati-Dinet, this is “also because of a governance issue” that Spain and Italy were left out of the process of enhanced cooperation for the creation of a unitary patent. The two countries have incidentally filed an appeal before the Court of Justice of the European Union, which will be heard on September 25th, 2012, in Luxembourg. “Officially, they have not join in because of linguistic considerations [the only languages recognized by the patent regulation are German, English and French]. But implicitly they do not want to give too much power to a supranational entity to determine the rules of competition”.


For him, the problem also applies to “states that are considered as 'small' during the negotiations, such as Poland”. In this country, he recalls, “companies have a thousand new patents each year to consider and fear an invasion of patents, would the unitary patent be adopted”.

An article entitled “Why we do not want the European unitary patent”, published in late August 2012 in “Polityka” (“the main Polish weekly” according to “Le Courrier International”), cites the poistion of Henryka Bochniarz, the president of the Polish employers' organisation, Lewiatan: “The organisation of employers Lewiatan calls to not support the unitary patent”. The article also quotes Krzysztof Ostrowski, director of intervention of BCC (Business Center Club) who fears “an increase in translation costs” and “a climate of uncertainty because patents will no longer be published in Polish”. However, the Polish Prime Minister Donald Tusk, calls to “show to our citizens and entrepreneurs that we are able to negotiate a favorable solution” and to support the project.

In the current project, the applicant no longer has to translate his patent in each language of the country where he wishes to protect his invention as it is currently the case with the EPO. But, notes Gérald Sédrati-Dinet, “all economic actors should understand what the patentis about, therefore should translate it: it is not a cost saving. Translation costs are moved, since it is no longer the patent holder who has to translate, but all other businesses”.


D'après lui, les députés du PPE sont « menés par les Allemands, très favorables au brevet ». « On observe le même phénomène du côté des députés S&D (sociaux et démocrates), menés par le rapporteur pour la législation principale sur le brevet, l'Allemand Bernhard Rapkay », ajoute-t-il avant de préciser que « seuls les députés des Verts ont repris les amendements suggérés par April. »

“Even inside Business Europe, the confederation of European employers' representations, which supports the proposed unitary patent, some express doubts, frightened by the gigantic trial taking place in the United States and the proliferation of 'patent trolls', these companies that buy patent portfolios and litigate”, says Gérald Sédrati-Dinet. For him, “the support for this project is not so unanimous, even if the opposition is timid: few voices carry as much as the institutional machinery of the European Commission”.

“The project has been underway for more than sixty years”, he analyzes. “Michel Barnier [European Commissioner for Internal Market and Financial Services] want to be 'the one who has concluded it'. And in the context of a weakening of the EU, it is also important in terms of image to achieve a unitary patent. Therefore, until December 2011, everything went very quickly, as noted in a column [published by 'Mediapart', English translation] Michel Rocard and Daniel Cohn-Bendit”.

Inside the European Parliament, “MEPs are paralyzed by the technical aspect of the project and they were stung by the failure of the directive in 2005 which was rejected almost unanimously”, resumed the April's activist. “Therefore, they waive the subject to a few negociators of the JURI Committee (Legal Affairs), which is chaired by Klaus-Hainer Lehne, a German MEP from the EPP. As reported in the press1, the latter is a consultant for a Düsseldorf firm in intellectual property, Taylor Wessing. He is also rapporteur for the third part of the 'package patent' about the court”.

According to him, members of the EPP are “led by the Germans, very favourable to the patent”. “We observe the same phenomenon on the side ofS&D (Social and Democrats) MEPs, led by the rapporteur for the main legislation on the patent, German Bernhard Rapkay”, says he, adding that “only members of Greens have taken the amendments suggested by April”.

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  • 1. For this matter, see “Reuters” article, of March 18th, 2011.