Unitary Patent: Why is EU Pushing Itself into Irrelevance?

Although I haven't written about the Unitary Patent for a while now, it hasn't gone away - alas. Instead, it is still grinding through the ratification process that is necessary before it comes into force. There are many questions about how it will work in practice, and whether it will offer any real benefits to European companies. So it's strange that the European Commission recently come out with a total puff-piece on the subject, which tries to convince people that it's all going to be great.

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Although I haven't written about the Unitary Patent for a while now, it hasn't gone away - alas. Instead, it is still grinding through the ratification process that is necessary before it comes into force. There are many questions about how it will work in practice, and whether it will offer any real benefits to European companies. So it's strange that the European Commission recently came out with a total puff-piece on the subject, which tries to convince people that it's all going to be great.  As you will see if you click on that link, that puff-piece also seems to have disappeared, which is rather telling (if anyone finds it again, please let me know.)

Now, IANAL, so I freely admit I am not qualified to make detailed criticisms of this disappeared text. But fortunately, The IPKat site is qualified, and has produced a splendid debunking of the complete twaddle put together by the European Commission, fortunately quoting most of the disappeared text. I urge you to read the whole post, which captures the essence of a totally bizarre move by the Commssion.  Here I'll just pick up on a couple of points, adding my own thoughts.

The European Commission's text is/was entitled entitled "The Unitary Patent package – better protection for European innovators". As The IPKat blog post points out:

Even the title gets off to a bad start. There is NOTHING in the Unitary patent that specifically helps European innovators - the advantages will be at least as great for non-European entities, and they will be shielded from some of the adverse effects

So, the European Commission is exactly wrong: the Unitary Patent is likely to give better protection to non-EU innovators. Then we have this statement:

A new agreement has smoothed the way for a truly unitary European patent – it will offer European inventors and innovators the comprehensive cover they need in the Single Market at a fraction of the current cost.

Er, no, on both counts. Since Spain and Italy aren't included, it can hardly be called "truly unitary European patent". As for those costs, The IPKat asks:

when will this rubbish idea stop being parroted? Particularly if the renewal fees are those recently suggested by the EPO, then the cost will be the same or higher for most users. Only for those patentees who validate in nearly all countries, and then probably only if they maintain their patents for full term, is there hope that the cost may be a "fraction"

The IPKat post then goes on to point out that the following comment is just bonkers:

Though European patents currently offer more extensive and better quality protection for inventions than almost any other patenting systems worldwide, the cost and regulatory burden of applying puts many businesses off – and some of these seek to protect their inventions via American patents instead.

The point being that if you want to protect an invention in Europe, taking out a US patent is hardly an option.

Assuming the Unitary Patent ever comes into being - and a legal challenge from Spain at the Court of Justice of the European Union is just one reason why it might not - the new Unitary Patent and the Unified Patent Court that will rule on disputes are both essentially outside the control of the European Commission, existing in a bizarre political limbo that is one of the most problematic aspects of the whole idea, as I've noted before. Leaving aside the fact that many statements on the vanished page are/were simply wrong, the larger question has to be: why on earth is the European Commission pushing an idea that will not only marginalise its own role, but make it highly likely that European companies will be forced to start paying an exorbitant patent troll tax like their American colleagues? One, moreover, that will be particularly problematic for the open source world which has few resources to fight back.

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