I've been writing about the attempt to craft a Unitary Patent in Europe for some years. The idea in itself is not bad: a patent that is valid across all of Europe. That would simplify filings and save costs, both of which are to be welcomed. But the devil is in the details, and it looks like those details are increasingly devilish.
There are two main issues for this column. The first is that the Unitary Patent could make it easier to obtain software patents in Europe. That's because German courts are already much friendlier to the idea, and if they approve such patents, they would then be valid even in software patent sceptical countries.
The second is related to the first, and concerns which court would ultimately rule on the validity of Unitary Patents. The two options are the EU's own European Court of Justice, or else an independent court populated by patent lawyers. The latter would not be an EU institution, and therefore would not need to take cognisance of things like the European Parliament's rejection of software patents a few years back. It could and almost certainly would do whatever it liked in this sphere, which would lead to a massive expansion in Europe of patents that concern software.
There are lots of deep issues about the overall legality of the Unitary Patent, but here I'd like to concentrate on the more pragmatic issues, which are probably easier to discuss with MEPs who are not necessarily lawyers, and don't really have time to get into the minutiae of this stuff.
First of all, there is the question of the timetable. Here's a summary:
Monday, Dec 10th (afternoon): discussion and vote by the Competitiveness Council on the Patent Package
Tuesday, Dec 11th: expected opinion of the Advocate General on the legality of the enhanced cooperation
Tuesday, Dec 11th (morning): debate in Plenary about the package
Tuesday, Dec 11th (morning): vote in Plenary on the patent package
Clearly, this thing is being rammed through as quickly and brutally as possible, which is disgraceful, given the impact it is likely to have on businesses throughout Europe. You do not pass major legislation like this in such a hurry, you take time to get it right. This means the vote on Tuesday really ought to be postponed.
If it isn't, then two crucial amendments are needed to correct massive flaws the Unitary Patent. The French site www.unitary-patent.eu, probably the best resource on this area, spells out what is needed:
To prevent such a disaster for European innovation and growth, we have proposed, among others, two compromise amendments which have been tabled by Greens/EFA group:
The first one (n° 76) renders explicit that the unitary patent is enshrined in EU law, under the competence of its legislator, and in particular of the European Parliament, along with the CJEU.
The second one (n° 74) restates the exclusion of software from patentability, as already expressed by the European Parliament in 2003 and 2005.
I'd therefore like to urge you to write to your MEPs today (I know, I know), pointing out the problems with the proposed Unitary Patent and its timetable, and asking them to postpone a final decision until things have been discussed properly or to vote for the two amendments mentioned above if that is not possible.
Here's what I've sent:
I am writing to you to express my concern about the Unitary Patent, which I believe you will be voting on soon.
As you know, this has been the subject of much discussion and political wrangling. Although the idea of single, Europe-wide patent is an excellent one, I fear that the text as it stands will actually make things worse than what we have now. Here, for example, is what will happen in practice, as discussed by the respected legal blog "The IPKat" (http://ipkitten.blogspot.co.uk/2012/11/latest-europatent-rumour-is-it-bye-bye.html):
"- Where a UK company is the defendant: Britco is sued for infringement in Greece by a US patentee who is the proud owner of an English-language unitary patent. The language of the proceedings would be Greek. The text of the patent is in English. The applicable national law is German (as applied by the Greek national division).
- Where a UK company is the plaintiff: this time Britco sues for infringement in Greece on an English-language unitary patent. The language of proceedings would be Greek. The text of the patent is in English. The applicable national law is English.
The final element mentioned in each of these hypothetical situations — the applicable national law — provides the new twist in each case and the potential for divergent jurisprudence in the UPC seems enormous. So why is it that hardly anyone seems to be aware of this potential new complication? Why has no-one appreciated the risk of fragmentation which prima facie seems monstrous?"
The only people who will benefit from this impossibly complicated set of rules will be the lawyers in large companies. Indeed, these will probably be the lawyers in US companies' legal departments, who will thrive in this atmosphere of extreme confusion. The big losers will equally clearly be the European SMEs, who will not have the in-house legal resources to navigate this astonishing labyrinth, and will find the cost of engaging external advice punitive.
I suggest that if the Unitary Patent is brought in with the current text, small and medium European companies will find themselves increasingly at the mercy of large US enterprises that will use the Unitary Patent to extend the kind of patent insanity that is now common in America. Here's what The New York Times wrote recently on the subject:
"In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years — an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings."
Is this really something that we want to come to Europe?
In the event that the vote is not postponed, I would like to urge you to vote for two amendments, tabled by the Greens/EFA group, that would go some way to reducing the damage that the Unitary Patents would inflict on European companies.
The first one, number 76, makes explicit the fact that the unitary patent is enshrined in EU law, under the competence of its legislator, and in particular of the European Parliament, along with the European Court of Justice. The second one, number 74, restates the exclusion of software from patentability, as already expressed by the European Parliament in 2003 and 2005.
Getting the Unitary Patent right is too important to simply wave through a messy compromise that makes things worse than they are today. I therefore hope you will use your vote to produce something better than the current proposals, and worthy of the people you represent in the European Parliament.