Open Letter to MEPs on Unitary Patent as Enhanced Cooperation

Brussels, 19 January 2011 — The European Union advances on a super-fast track on the “enhanced cooperation” for unitary patent protection among a coalition of the willing after an envisaged Community Patent has once again failed to reach consensus in the Council, attributed to the linguistic divide.

The fast move puts aside democratic scrutiny, questions on legality and European unity. The new Unitary Patent is proposed to put patent granting outside the EU in the hands of EPO. The EPO is controversial for its granting of software patents without a prior legislative authorisation. A Unitary Patent without a link to EU-innovation policy influence might be a toll on innovation and SME interests.

FFII statement on the Lehne draft patent resolution

“Enhanced Cooperation” is the saddest road to choose from an European integration perspective. Everything should be tried to avoid an European Union with member states on different speed lanes and to get a real European solution. Europe is not only about German industry needs.

While the consensus on a Community Patent within the acquis has been fragile the current “enhanced cooperation” backup solution is a stable coalition of the willing. For this reason it seems difficult to endorse the extreme rushing of Commissioner Michel Barnier and the rubber-stamping attitude of rapporteur Klaus-Heiner Lehne.

The unprecedented super-fast pace would only undermine an opportunity for the Members of Parliament to exercise democratic scrutiny. It is unwise for MEPs to restrain their powers as suggested by the European Commissioner Michel Barnier. The Unitary Patent envisaged can’t get less satisfactory than the Commission proposal.

The European Parliament needs to make better use of its prerogatives. Without its consent there can’t be enhanced cooperation under Article 329 TFEU. In view of the fact that Parliament is precluded from proposing any amendments to the proposed decision, Parliament should remind the institutions to deliver on its demands from the Gierek report (“43. Calls on the Commission and the Member States to propose, in the context of the new Community patent, a procedure for eliminating trivial patents and sleeping patents”).

The Commission should also be pressured to submit proposals for substantive harmonisation of national patent laws within the EU framework. Without supplementing substantive approximation a Unitary Patent is bent to shake and break national practices. EU harmonisation should also be tried for administrative practices of national patent offices. These supplementary harmonisation issues stay unaffected by the linguistic divide.

The proposal from the Commission leaves an elephant in the room completely untouched. Without a consideration of alternatives or an impact assessment the European Patent Organisation (EPO), a non-EU institution in Munich, would be tasked with examination. A strong role for the EPO makes the EU yield any governance influcence over its Unitary Patent. For instance staff of the international EPO is not subject to EU labour protection and employement standards, and stays beyond any reach for parliamentary inquiries and democratic control.

We propose an open tendering process instead. Pro forma the Unitary Patent should be managed by an EU institution with the actual administrative work distributed to specialists (at the EPO etc.) on EU terms. The Office for the Harmonisation of the Internal Market (OHIM) in Alicante (Spain) which already manages the EU community trademark looks ideal to govern, the European or national patent offices and private contractors would take over examination and other administrative tasks. A role for the EU institution in Spain would also unblock Spanish opposition to an actual Community Patent.

The European Parliament should withhold its consent before the ECJ has delivered its opinion on the patent court. Moreover, the enhanced cooperation mechanism has changed the architecture of project, e.g. with regard to EU accession to European Patent Convention (EPC). Therefore, some work still has to be done to negotiate at least the main lines of the project. The European Parliament should exercise its powers. Commissioner Barnier can amend their proposal any time to satisfy Parliament or make otherwise concessions.”


Current state

The Legal Affairs Committee of the European Parliament is due to debate On 20 January 2011 a draft report by its chairman MEP Klaus-Heiner Lehne on the Commission proposal for a Council decision authorising enhanced cooperation for the creation of unitary patent protection. The draft report from Klaus-Heiner Lehne proposes that the European Parliament consents to the Commission proposal for a  Council authorisation decision. The European Parliament will have to give its consent to the proposal for an authorisation decision. A vote in the Committee is scheduled for 27 January and in the European Parliament Strasbourg Plenary on 15 February 2011. It is to be concluded by Council in its 10 March 2011 session.



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About FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

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