TODAY the EU could make a disaster or a victory for software developers. A lot of European software enthusiasts talk about it, including Birgitta Jónsdóttir, an Iceland-based member of parliament that's associated with Wikileaks fame. We wrote about the subject on Monday and many times before that, noting that Poland is trying to put up a fight.
I've been writing about the attempt to craft a Unitary Patent in Europe for some years. The idea in itself is not bad: a patent that is valid across all of Europe. That would simplify filings and save costs, both of which are to be welcomed. But the devil is in the details, and it looks like those details are increasingly devilish.
There are two main issues for this column. The first is that the Unitary Patent could make it easier to obtain software patents in Europe. That's because German courts are already much friendlier to the idea, and if they approve such patents, they would then be valid even in software patent sceptical countries.
The second is related to the first, and concerns which court would ultimately rule on the validity of Unitary Patents. The two options are the EU's own European Court of Justice, or else an independent court populated by patent lawyers. The latter would not be an EU institution, and therefore would not need to take cognisance of things like the European Parliament's rejection of software patents a few years back. It could and almost certainly would do whatever it liked in this sphere, which would lead to a massive expansion in Europe of patents that concern software.
There are lots of deep issues about the overall legality of the Unitary Patent, but here I'd like to concentrate on the more pragmatic issues, which are probably easier to discuss with MEPs who are not necessarily lawyers, and don't really have time to get into the minutiae of this stuff.
The European Parliament is about to vote on a "unitary patent" for Europe in its plenary session on December 11. The proposal currently on the table is widely known to have serious legal and practical problems. In the light of these problems, Free Software Foundation Europe urges the Parliament's members to delay the vote until a better solution can be worked out.
Under the current proposal, the Parliament would agree to give up its power to shape Europe's innovation policy. This is a dangerous proposition. Knowledge and innovation are crucial to our future, and we cannot simply delegate their management to a technocratic body such as the European Patent Organisation. Europe's political institutions have to have the final say over innovation policy. This is a responsibility which MEPs cannot shirk.
"MEPs must not saddle Europe's innovators with a rotten compromise. Innovation is a key part of our common future, and it is too important to be gambled away in a hasty decision," says Karsten Gerloff, FSFE's President.
The political process that has led up to the current proposal has suffered from a marked lack of transparency. The European Parliament still has not published the text of the inter-instutional agreement which it reached with the Council on November 19.
"We are deeply alarmed that such a crucial text may be ramrodded through Parliament before MEPs and the interested public have had a chance to properly consider the text," says Gerloff.
The most important practical problems with the current package:
* Instead of providing uniformity and transparency for market participants, the current proposal will create divergence and confusion. It will be hard for anyone to obtain clarity on how a patent may be used, or where its powers end. * Lack of limitations and exceptions puts Europeans'freedom to innovate at risk. There is no provision for compulsory licenses, posing a grave danger to public welfare. The lack of a research exception puts a millstone of risk around the neck of Europe's scientists. * - Small and medium-sized enterprises are the backbone of Europe's economy. If this wrong-headed compromise is accepted, they will bear the brunt of the resulting problems. This is not something that Europe can afford, much less in the midst of an economic crisis.
The most important legal problems with the current package:
* The compromise would lead to a fragmentation of the internal market, as patents would not be uniformly enforceable across all EU member states. Additionally, there would be four overlapping levels of patents existing side by side. This will inevitably create substantial confusion and business risks for innovators and companies. * A proliferation of courts that may handle patent litigation will inevitably lead to a fragmentation of jurisprudence. This will even further confuse anyone who comes into contact with the patent system, increase the costs of litigation, and make patent risks even harder to calculate for businesses. * The envisioned Unified Patent Court is incompatible with European law. Europe's policy makers have failed to address the problems highlighted by the European Court of Justice in its Opinion 1/09 (March 2011). Even the Parliament's own Legal Services department has doubts about the package's legality.
A package which leaves such significant problems unaddressed is not fit to be adopted by responsible lawmakers. Policy makers are keen to put this hotly contested issue behind them. But this desire must not lead them to rush into an ill-considered compromise with numerous known problems, in the face of widespread opposition from the patent system's stakeholders.
FSFE joins large parts of the innovation community, and in particular the Max-Planck-Institute in urging the Parliament to reconsider the unitary patent package. Until a better solution can be achieved, MEPs should heed the age-old principle: First, do no harm.