A couple of weeks ago I wrote about the danger that the Unitary Patent would usher in software patents to Europe. The proposal was supposed to be voted upon last week in the European Parliament's plenary session, but was postponed, thanks to our very own David Cameron.
This came about during the horse-trading that went on over where the European patent court should be located. Here's the official statement on what was agreed [.pdf]:
Heads of State or Government of the participating Member States agreed on the solution for the last outstanding issue of the patents package, namely the seat of the Central Division of the Court of First Instance of the Unified Patent Court (UPC). That seat, along with the office of the President of the Court of First Instance, will be located in Paris. The first President of the Court of First Instance should come from the Member State hosting the central division.
Given the highly specialised nature of patent litigation and the need to maintain high quality standards, thematic clusters will be created in two sections of the Central Division, one in London (chemistry, including pharmaceuticals, classification C, human necessities, classification A), the other in Munich (mechanical engineering, classification F).
But the UK only agreed to this split of competences with the following proviso, also part of the official announcement:
We suggest that Articles 6 to 8 of the Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection to be adopted by the Council and the European Parliament be deleted.
Dropping those clauses would mean removing patent matters from the European Court of Justice. That is important, because a court outside the jurisdiction of the EU would be free to broaden the range of patentability – including software patents, for example. The ECJ, by contrast, has shown itself inclined to defend European citizens from disproportionate action by companies (from example by forbidding ISPs from being forced to spy on their customers at the behest of media companies), and is more likely to police the ban on software patents in Europe more strictly.
Fortunately, the European Parliament has noted this move, and is not very happy about it:
Klaus-Heiner Lehne (EPP, DE), Chair of the Committee on Legal Affairs, which has responsibility for the matter, backed Mr Rapkay, saying "if Council is working to delete articles 6-8, it would emasculate the proposal. We want clear confirmation that these three key articles are to be deleted. If so, this will go straight to the European Court of Justice as a 'crash test' case".
The issue will now be discussed again on 10 July by Legal Affairs Committee MEPs, together with Council, Commission and Parliament's Legal Service.
As you can see, the Unitary Patent is being discussed by the Legal Affairs committee (JURI) tomorrow, so we have a chance to write to them before then, encouraging them to stand firm on keeping Articles 6 to 8. JURI's UK members are as follows:
Here's the short email I'm sending:
I believe that you will be considering the Unitary Patent tomorrow, and in particular the attempt to remove Articles 6 to 8 from this. I would like to urge you to fight to keep these, since the European Court of Justice plays a vital role in acting as a guarantor of justice within the European Union: diminishing its role here would mean that the EU would lose much of its control over this important area.