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01.31.11

April/End Software Patents/FFII Ask European Parliament to Postpone Enhanced Cooperation on Unitary Patent After CJEU Opinion

Posted in Europe, Patents at 4:04 am by Dr. Roy Schestowitz

Summary: Reposted statement from April/End Software Patents/FFII (released moments ago)s

Dear Member of the European Parliament,

We, as nonprofit organizations acting in the field of patent policy, are concerned about the fast-tracking of the proposal for enhanced cooperation on the unitary patent (NLE/2010/0384), which was voted in
JURI commission on January 27th. Given that the Court of Justice (CJEU) will soon publish its opinion on the legality of a proposed jurisdiction governing the settlement of litigation related to the unitary patent and given that this proposal involves transferring legislative power from the EP to the European Patent Office (EPO) [1], we believe it would be sensible to wait for the CJEU’s opinion so that there can be an informed debate before deciding this important issue.

The current proposal for a unitary patent [2] requires a unified jurisdiction with a central court. According to the Commission, the current proposal is similar to the European and EU Patent Court (EEUPC) proposal. The CJEU is reviewing the EEUPC proposal but has not yet released its opinion regarding compliance with the EU Treaties. This opinion is far from a formality: the Advocates General of the CJEU were highly critical of the project and deemed it incompatible with the EU Treaties [3], because the new patent court rulings would have a direct impact on EU law without any control from EU institutions.

Further, the current proposal involves delegating the entire pre-granting procedure for the unitary patent to the EPO, whose patent-granting excesses have been denounced repeatedly. Existing outside of the EU, the EPO already has very little oversight. The main democratic control that exists is that the EP still has the competence to legislate. The EPO’s own Enlarged Board of Appeal acknowledged the need for a real legislative body in the patent system in an opinion published in May 2010 on the topic of software patents, saying that “When judiciary-driven legal development meets its limits, it is time for the legislator to take over” [4]. When the CJEU’s opinion is published, it may contain useful suggestions for how to add the necessary oversight for such a system.

We respectfully request that the European Parliament postpone the vote regarding enhanced cooperation until publication of the CJEU’s opinion.

Signatories

Tangui Morlier, April (President)
+33 1 78 76 92 82, prez@april.org
Ciaran O’Riordan, End Software Patents (Executive Director)
+32 487 64 17 54, ciaran@member.fsf.org
Benjamin Henrion, FFII (President)
+32 484 56 61 09, president@ffii.org

Links

[1] See for instance the open letter to MEPs sent by the Staff Union of the European Patent Office on
http://www.suepo.org/public/news/su10050cl.pdf

[2] This enhanced cooperation will be implemented by a regulation on a unitary patent, which will cover all participating Member States, asopposed to the current European Patent, governed by the European Patent Office (EPO) which is actually a bunch of various designated national patents.

[3] More information can be found on
http://www.ipeg.eu/blog/wp-content/uploads/Advocates-General-Opinion-1-09.pdf.

[4] This decision can be found on
http://documents.epo.org/projects/babylon/eponet.nsf/0/DC6171F182D8B65AC125772100426656/$File/G3_08_en.pdf.

About April

Founded in 1996, April is the main French advocacy association devoted to promote and protect Free/Libre Software. With its 5476 members (5004 individuals, 472 businesses, associations and organizations), April is a pioneer of Free Software in France. Since 1996, it is a major player in the democratization and the spread of free software and open standards to the general public, professionals and institutions in the French-speaking world. It also acts as a watchdog on digital freedoms, warning the public about the dangers of private interests keeping an exclusive stranglehold on information and knowledge.
April is a registered interest representative (ID: 30399252478-91) in the EU.
http://www.april.org/

About End Software Patents

Since 2008, End Software Patents (ESP) works to eliminate patents which prevent the development or distribution of software. ESP participates in government consultations and court cases, and provides
information resources to enable local citizens to participate effectively in these processes. For more information on participating in the project, or to access its knowledge base, please visit its
website at:
http://endsoftwarepatents.org/

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 in data processing.
http://www.ffii.org

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