FSFE: European Parliament must delay vote on unitary patent

The Free Software Foundation Europe (FSFE) reports that the European Parliament is about to vote on a “unitary patent” for Europe in its plenary session on 11th December. The proposal currently on the table is widely acknowledged to have serious legal and practical problems.
In the light of these problems, Free Software Foundation Europe is urging MEPs 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 the future and we cannot simply delegate their management to a technocratic body such as the European Patent Organisation (EPOrg). Europe’s political institutions must have the final say over innovation policy and 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 FSFE President Karsten Gerloff.

The political process resulting in 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 of Ministers on 19th November.

“We are deeply alarmed that such a crucial text may be ram-rodded 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 are:

• 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 licences, 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 (SMEs) 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 are:

• The compromise would lead to a fragmentation of the EU’s internal market, as patents would not be uniformly enforceable across all EU member states. Furthermore, 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 confuse even further 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 of 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 should not 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.

FSFE is joining large parts of the innovation community, and the Max-Planck-Institute in particular, 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.