[A2k] Unitary Patent: Keys for European Patent Office and Door to European Parliament

"Gérald Sédrati-Dinet (Gibus)" gibus at april.org
Tue Dec 11 07:14:17 PST 2012


** Paris, December 11th, 2012. Press Release. – On Tuesday December
11th, 2012, the European Parliament voted for the regulation on the
unitary patent: Members of the European Parliament (MEPs) have
eventually accepted the text despite all legal, economic and political
concerns over which we had warned them [1]. **

Furthermore, the Advocate General of the Court of Justice of the
European Union (CJEU) has concluded that the Enhanced Cooperation
procedure was not affected by illegality without assessing the merits of
the implementing regulations. However, he has warned that unitary patent
cannot be achieved by the Member States, but only by the Union [2],
which does not match the procedure exactly.

April regrets a missed opportunity for the European Parliament to
finally create a genuine patent of the European Union. “Even if some
MEPs, and above all the Greens/EFA group, fought for an improvement of
the text, and despite concerns expressed by Polish MEPs, the majority
blindly followed the deceiving talk of a rapporteur Rapkay incensed by
the critics voiced, and voted in support of a problematic text. ”

The next steps, a formal adoption in the Council and the decision of the
ECJ, are not expected to reverse the trend. The adoption of the
international agreement which sets up a unified patent jurisdiction t by
the Member States may however highlight new objections. A possible
recourse by a Member State before the ECJ could finally sack the entire
text for its illegality: the opinion of the Advocate general alludes to
the result of such action is far from being certain.

"There is still the issue whether companies will actually use this
instrument, as many have already said that they prefer the current
system rather than the legal uncertainties of the unitary patent",
explains Jeanne Tadeusz, Public Affairs officer at April.

April denounces the message sent by the European Parliament to
deliberately abandon its power on patent issues, and the glowing report
given to the European Patent Office, despite controversial practices on
granting software patents in disregards with European law.

[1] See the amendments APRIL had suggested to this end:

[2] Advocate General's Opinion recalls that: “the question of the
creation of a specific judicial system for unitary patents is not among
the conditions required by the relevant articles of the Treaties for the
implementation of enhanced cooperation. The authorisation granted by the
Council for the setting-up of enhanced cooperation is merely the premiss
for the adoption of other legislative acts which will then have to give
specific effect to that enhanced cooperation. Furthermore, in its
proposal of 13 April 2011 for a regulation of the European Parliament
and of the Council implementing enhanced cooperation in the area of the
creation of unitary patent protection, (29) the Council addressed the
question of jurisdictional protection of that patent.

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