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07.26.15

The ‘Unitary’ Patent Trojan Horse Rammed Down the Throat of Europe

Posted in Europe, Patents at 2:54 pm by Dr. Roy Schestowitz

Throat

Summary: Under the guise of ‘unification’ or ‘unity’, existing patent systems are being abandoned and more power gets passed to corrupt EPO officials

THE UPC, promoted by the EPO, still threatens to put Europe under an unprecedented patents regime that invites patent trolls and other nasties, including software patents. The UPC is not going away, it is spreading across Europe these days. Some patent lawyers’ assessment says it might start as early as next year, even before a British referendum (or any other public consultation in member states) takes place, showing that the will of corporations supersedes the public’s interests.

“For the United Kingdom there is the uncertainty of the ‘in-out’ referendum scheduled for 2017,” explains this one site, as it “will decide on the UK’s membership to the EU. Interestingly, if the UK leaves the EU after ratifying the Agreement on a unified patent court, there seems to be little danger to the unitary patent. (Well, no other danger than suffering the loss of a major EU economy, that is.) Fortunately, the ratification process in the UK should be finalized in 2016.”

An article by Pieter Callens (mentioned the other day) recently said that the “UK has formally indicated that its ratification process would be completed in spring 2016″ (less than a year from now).

“Rules are being relaxed to maximise protectionism for monopolies, just like in the domain of copyrights, even if the public is collectively harmed by these.”As recently as last month a paper was published that’s titled “A Unitary Patent for a (Dis)United Europe: The Long Shadow of History”. To quote the abstract: “The international patent system is undergoing a profound transformation towards ever greater global integration of institutions and harmonization of standards. The movement for unification of the European patent system is part of this wider global trend, but the unification goal has proved difficult to realize in Europe notwithstanding persistent efforts dating back to the end of WWII. This paper draws on confidential archived documents to retrace the early origins and evolution of the European unification movement to examine what can be learnt from history. In line with recent historiographies of the synergies and rivalries between international organizations and the European community, the paper reveals three phases in the evolution of norms and institutions in the unification movement in Europe. In the first phase, the European unification project is driven by the Council of Europe as part of an abstract ideal of European integration and is characterized by a ‘co-existence’ model based on common denominators in national laws. In the second phase, the harmonization agenda is taken over by the European Community and its rationale morphed into the community’s goal of (dis)integration of national patent laws and their replacement by a uniform and autonomous patent community system as a strategic tool for the realization of the common market. But the EC’s initiative is frustrated and results instead in partial harmonization with the adoption of the European Patent Convention in 1973 and the creation of the European Patent Organization. This opens a third phase and problematic for the European community which is having to integrate a pivotal external institution into a unified legal architecture to serve the community’s goals. The last part of the paper illustrates with a case study how the shadow of the past has left its imprint in the disjointed and overly complex legal architecture of the latest patent unification initiative in the form of the EU ‘patent package’ which was given the green light by the Grand Chamber of the Court of Justice of the European Union on 5th May 2015 and whose effect, it is argued, is to enlarge the role of the EPO whilst leaving the EPO outside the legal reach of the European Union.”

Another paper, titled “The Unitary Patent: New Rules for Internal Market Lawmaking?”, was also published a month ago. It states the following: “The EU’s patent plans look back on a long history of ups and downs. The ECJ has now dealt with different aspects of those plans, including the latest model that is now poised to enter into force, at three different occasions. That jurisprudence shifts from strict to relaxed, which invites speculation as to the reasons for that shift. More importantly however, the recently relaxed approach may have unforeseen and unwanted repercussions on integration dynamics in general: The novel legislative method of the UP Regulation might be a politically attractive, but legally dangerous tool for pushing flexibility in internal market integration far beyond the scope, possibilities and intention of territorial differentiation hitherto known under the classic mechanism of enhanced cooperation. In fact, the novel method complements territorial flexibility by allowing for flexibility in substantive law. This offers new possibilities, but also comes at higher costs for the unity, stability and coherence of EU integration and EU law.”

We have written about this subject for over half a decade and we have repeatedly explained why the notion of unification, harmonisation etc. (all are cheap euphemisms) is just a Trojan horse for perturbing existing patent systems in favour of large enterprises with many lobbyists. They hope to overthrow pertinent patent offices in member states in order to form a new system under the notorious and corrupt management which we know resides at the EPO. Rules are being relaxed to maximise protectionism for monopolies, just like in the domain of copyrights, even if the public is collectively harmed by these.

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