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Innovation at risk in EU - the EU unitary patent adopted by EP

19 December, 2012

This article is also available in:
Deutsch: Innovation in Gefahr: EP verabschiedet einheitliches EU-Patent

Despite strong and long opposition and criticism from patent lawyers, legal experts, SMEs and civil society groups , on 11 December 2012, the European Parliament (EP), putting at risk any innovatory efforts, adopted a flawed proposal of unitary EU patent and patent litigation court system.

The EP approved, right after the Council of Ministers, a package including a regulation for the creation of the unitary patent system, a regulation for the setting up of a language regime for the patents and an international agreement for the EU member states establishing a single, specialised jurisdiction to hear patent cases.

The supporters of the proposal argued that the unitary patent would cut application and translation costs while giving more legal certainty to inventors.

Yet this vote practically leaves the EP without any powers in having a say in the innovation area, giving the European Patent Office open way to continue granting patents on software which will harm competition and innovation.

Also, the approved proposal will very likely create confusion due to its lack of transparency and uniformity. It’s going to be difficult to find out clearly how a patent may be used. Moreover, there are no limitations and exceptions, not even for research and no provision for compulsory licenses.

"We are disappointed that so many MEPs were prepared to throw Europe's researchers and innovators under the bus just to achieve a deal, any deal. It is natural that after nearly four decades of discussions on a single patent system for Europe, most of those involved simply want the debate to end." said Karsten Gerloff, President of the Free Software Foundation Europe.

This unitary patent system will lead to nothing unitary but, on the contrary, to a fragmentation of the internal market, as patents would not be uniformly enforceable in all EU member states and, there will be four overlapping levels of patents which will only create confusion and risks for innovators and companies. This confusion will be doubled by the fragmentation of the jurisprudence resulted from the proliferation of courts that will be able to handle patent litigations. This will lead to an increase of the litigation costs also making the evaluation of patent risks harder.

Italy and Spain have yet refused to join the unitary patent system because of the translation agreements. Patents will be granted only in French, German or English, for the time being. The two countries also challenged the “enhanced cooperation” basis for the agreement on several grounds, considering that the Council lacked the authority to agree on enhanced cooperation.

It is not yet clear whether the court system, agreement and regulations will be challenged in the European Court of Justice by Spain or Italy or by other court litigants and whether they’ll be found to comply with EU law. In patent attorney Daniel Brook’s opinion, there are a lot of practicalities to be solved such as the judges, infrastructure of the patent registry and courts, as well as costs.

Loucas Louca, justice and public order minister for Cyprus (which holds the current EU Presidency) stated that a draft international accord for the patent court system will be ready in February 2013.

The EP’s website explains that “the international agreement creating a unified patent court will enter into force on 1 January 2014 or after thirteen contracting states ratify it, provided that UK, France and Germany are among them. The other two acts would apply from 1 January 2014, or from the date when the international agreement enters into force, whichever is the latest. Spain and Italy are currently outside the new regime, but could decide to join in at any time."

European Unitary Patent And Court Becomes Reality (11.12.2012)

First, do no harm: European Parliament must delay vote on unitary patent (8.12.2012)

European Parliament adopts deeply flawed unitary patent, gives up power over innovation policy (11.12.2012)

EDRi-gram: Unitary patent brings back the software patents debate (12.09.2012)



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