Unitary Patent

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The proposal for a Unitary Patent and the threat it represents

The Unitary Patent is a proposal for a European regulation, which was first filed in April, 2011. Its aim is to unify patent titles and jurisdiction between interested member states, through a enhanced cooperation.

The idea behind the project is not problematic in itself. However, the way the project is currently organized is concerning for April: most of the resources would be given to the European Patent Office (EPO), whose drift in favor of sotfware patents have been long criticized by April.

• For more information, a complet website on the issue : https://www.unitary-patent.eu

What's the issue ?

• Threat of software patents coming to Europe in spite of the prohibition by the European Parliament in 2005
• Threat of patent trolls appearing in Europe (companies which file or buy patents with the only aim of getting royalty payments from other companies
• Threat of big legal actions on software patents, like the Apple/ Samsung case

The issues in a few words

The unitary patent is a proposed European regulation which aims to unify patent's titles and its jurisdiction among interested Member States. Behind this seemingly harmless announcement hides a particularly dangerous system and the come back of software patents.

The threats of software patents

Software patents are forbidden by the EPC which lays down the principles of patentability in Europe and which has created the European patent office (EPO). However, this office ignores the text of the Convention and has been delivering software patents for many years (see for instance http://webshop.ffii.org). Yet these patents are harmful to innovation and to Free Software as shown by the trials in the USA and by many surveys: patents do not suit software tools which are already well protected by copyright law.

The unitary patent - creating an uncontrollable system

In its current form, the unitary patent hands to the EPO the granting of the patents. The control of these patents validity and of their compliance with the laws on what is patentable will be carried out by a "specialized court". This "specialized court" will be constituted only of patent specialists, without any possible recourse to an independent court. Thus the patent microcosm will be both judge and judged, without any democratic overview to prevent potential abuses.

How to act?

The unitary patent project will be discussed again this autumn within the legal affairs committee of the European Parliament. April suggests improvements towards a greater respect of the law and of the democratic rules. But for these amendments to be heard, it is crucial that MEPs be made aware of the stakes of this project and of the impact it could have on Free Software and on our freedom in this digital era. Contact your MEPs to make them aware of the dangers of the project of unitary patent and to ask them to amend it in order to comply with democratic rules and the control of the excesses that constitute software patents.

The MEPs information campaign

How to contact a MEP

STEP 1: in the list of members of the JURI Committee, I select a MEP. The list: https://memopol.lqdn.fr/europe/parliament/committee/JURI/

STEP 2: I send him/her an email, using the examples for inspiration

STEP 3: The next day, I call his office to check whether they received my email and to ask what they plan on doing. I can also use the sample dialogue below.

Email

Example of an email sent by a citizen

Dear Member of the European Parliament "name of the MEP"      

My name is "name" and I am writing to you about the unitary patent project which will be discussed in the European Parliament
in October. As a citizen of the European Union, I am really concerned about this project.

If this regulation passed, all patent cases would fall within the jurisdiction of a new specialized and unified court linked to 
the European Patent Office (EPO). No appeal before an independent and non specialized court would be possible. I have serious 
doubts about the ability of such a system to guarantee due process.

Furthermore, there is a risk that the new court applies the EPO's precedents and caselaw. It is a cause of concern, especially
since the EPO has been delivering software patents for years, in spite of the fact that all international treaties prohibit them
(European patent convention, WIPO copyright Treaty, TRIPS agreement). In addition to the fact that such legal  framework is
unsuited to software, it is definitely incompatible with the development of Free Software. Although the EU would benefit from
the development of Free Sotware, which improve consumer's choices and create jobs (most Free Software is currently EU-based), I
deeply regret that the European lawmakers do not take into account this growth potential. 

Unitary patents in themselves may improve competitiveness and innovation - but the current project does not do that whatsoever.
European lawmakers have to step in and to amend the project in order to restore the competence of the European Court of Justice in
the last resort. Then, the ECJ would control the unified court's decisions and would definitely exclude software from the scope of
patentability. 

Thank you for your attention, and please do not hesitate to contact me for more information. I will also call you in the next few
days to know what is you stance on the issue.  

<Name>
<Signature>

Acronyms:
TRIPS: Trade-related aspects of intellectual property rights 
EPO: European patent office
WIPO: World Intellectual Property Organization

Email by a company

Dear Member of the European Parliament,

Our company is worried about the current plans to set up a unitary patent with
a flanking unified patent court.

The European Patent Office (EPO)'s practices to grant software patents, under
the deceiving term of “computer-implemented inventions”, pose a threat to our
professional activities.

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 regulation on the unitary patent is an opportunity for the EU legislators
to harmonise substantive patent law in the EU institutional and jurisdictional
framework, and to put an end to the EPO's self-motivated practices extending
the realm of patentability to software. Failing to do so, this unitary patent
will do more harm than good to the EU ICT firms.

For these reasons, 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 vote of the European Parliament on September 24th, 2003
and July 6th, 2005.

<signature>

How to contact a MEP by phone

Short version

Supporter: Hello, my name is «  surname, name », I am « occupation/job » and I would like to talk to you about the Unitary patent project that you will discuss on the 17th and 18th September.

Mep's staff: Hello, I'm sorry but Ms/Mr « name of the Mep » is currently busy , it would be a better idea to send him/her an e-mail.

Supporter: Please wait, Mrs/Mr « name of the Mep » is my representative and I would really like to know his position on this project which is a big source of concern for me.

Mep's staff: Ms/Mr (name of MEP) thinks that the Unitary patent project is crucial to ensure competitiveness and innovation in the EU.

Supporter: Yes, but the adoption of this patent regulation brings the risk of the comeback of software patents. This is the fear of many firms and citizens. April, a French association which protects and promotes Free Software has pinpointed these risks by a questionnaire summarizing the project's main issues.

Mep's staff: I'm not aware of the existence of such a questionnaire.

Supporter: This questionnaire is available on April's website. It would be a good thing if Ms/Mr « name » could take the time to read it. It will allow him/her to see that many issues are not adressed by the proposed regulation - issues that are crucial for innovation and knowledge society.

Mep's staff: Ms/Mr (name of MEP) will take time to consult this website if you send us the link via e-mail.

Supporter: It will be sent quickly. (1) Could you confirm that the e-mail adress "initalnam@europarl.europa.eu" is valid ?

Supporter: I would like to add that I don't call into question the project of unitary patent which is probably a step forward for the EU. My comments aim to improve the project in order for it to meet its goals. But the risk of software lock-down by patents would paralyse innovation.

Mep's staff: I have taken into account your comments. They will be shared with the MEP.

Supporter: Thank you for your time. I will call later back on to know the MEP's opinion of the several points I just raised.

1. https://www.brevet-unitaire.eu/content/ten-written-questions-commission-and-council

Long version

Supporter: Hello, my name is “firstname, lastname”, I am “job/occupation” and I would like to talk to you about the proposal regarding the unitary patent that you will discuss on the 17th and 18th September.

MEP's staff: Hello, I'm sorry but Ms/Mr “MEP's name” is currently busy, it would be a better idea to send him/her an e-mail.

Supporter: Please wait, Ms/Mr “MEP's name” is my representative and I would really like to know her/his position on this project which is particularly concerning.

MEP's staff: Ms/Mr “MEP's name” thinks that the unitary patent project is crucial to ensure competitiveness and innovation in the EU.

Supporter: Yes but this project creates a unified jurisdiction linked to the European Patent Office (EPO) which has been granting software patents for years. There is a risk that the new court applies the EPO's precedents and case law. Yet software patents are detrimental to innovation in this field, and that's why they are prohibited by all international agreements.

MEP's staff: The project doesn't plan that patent litigations will be directly ruled by the EPO, but by an independent Court which cannot be confused with the EPO.

Supporter: There is however a real and serious concern about that court, because it might be seen as not really independent. The judges of the unified jurisdiction are very likely to be chosen among the Boards of Appeal of the EPO. And these very Boards of Appeals are the one who have authorised to grant software patents.

MEP's staff: The European Court of Justice (ECJ), through preliminary rulings, will guarantee the strict interpretation of relevant texts in case of drifts from the Unified Patent Court. Therefore there is no chance for the new jurisdiction to create software patents from scratch.

Supporter: But in this project, the Union has no role in defining patentability issues. It relies on the European Patent Convention (which is not included in EU Law). Thus, the Unified Patent Court will have a high level of autonomy and the ECJ won't have any competence because such provisions are not included in Union Law. This is really an open door for software patents.

MEP's staff: Listen, the unitary patent is a project where a general agreement is hard to find. Relying on the European Patent Convention has allowed to move forward faster. Specialists who will seat in the Unified Patent Court will undoubtedly take appropriate decisions in compliance with EU Law.

Supporter: But patent law is not just a matter for specialists. Innovation policy and knowledge society depend on patent law. And patent law has impacts beyond its own field of law, for instance on competivity law or on fundamental rights and freedoms. For all these reasons, the European legislator has to get involved and should not choose the easy way. She has to bring the very substantive right of the unitary patent in her competence.

Supporter: I am also concerned with another issue. It is about the specialisation of the Unified Patent Court. Actually, the creation of a specialised Court amounts to waive patent issues to a patent microcosm, both on first instance and on appeal. Don't you find that there is a risk with a litigation process which is never reviewed by an independant Court? would not that carry a risk in terms of due process ?

Supporter: Although such technical skills may justify resorting to specialization in the first instance, but nothing justifies specialization throughout the process. Specialization includes the risk of giving up topics that are relevant to society as a whole to a small number of professionals who in turn work for companies, law firms, consulting firms on industrial property that couldt to put forward only their own interests and not the one by the lawmakers. In addition, there is a risk of bias if those ruling on the patent were allowed to sit also in the unified jurisdiction. We would then be in an unacceptable situation in which the person who issued the title would be the same as the one judging the validity of title during litigation.

MEP's staff: I have taken into account your comments. They will be shared with the MEP.

Supporter: Thank you for your time, and I hope my opinion will be shared by Ms/Mr the MEP.

Links

• French version : Brevet Unitaire