[ffii] FFII: Open Letter to MEPs on Unitary Patent as Enhanced Cooperation

Office FFII e.V. office at ffii.org
Wed Jan 19 17:22:06 CET 2011

FFII: Open Letter to MEPs on Unitary Patent as Enhanced Cooperation

The European Union advances on a super-fast track on the »enhanced
cooperation« for unitary patent protection among a coalition of the
willing after an envisaged Community Patent has once again failed to reach
consensus in the Council, attributed to the linguistic divide.

The fast move puts aside democratic scrutiny, questions on legality and
European unity. The new Unitary Patent is proposed to put patent granting
outside the EU in the hands of EPO. The EPO is controversial for its
granting of software patents without a prior legislative authorisation. A
Unitary Patent without a link to EU-innovation policy influence might be a
toll on innovation and SME interests.

FFII statement on the Lehne draft patent resolution

"»Enhanced Cooperation« is the saddest road to choose from an European
integration perspective. Everything should be tried to avoid an European
Union with member states on different speed lanes and to get a real
European solution. Europe is not only about German industry needs.

While the consensus on a Community Patent within the acquis has been
fragile the current »enhanced cooperation« backup solution is a stable
coalition of the willing. For this reason it seems difficult to endorse
the extreme rushing of Commissioner Michel Barnier and the rubber-stamping
attitude of rapporteur Klaus-Heiner Lehne.

The unprecedented super-fast pace would only undermine an opportunity for
the Members of Parliament to exercise democratic scrutiny. It is unwise
for MEPs to restrain their powers as suggested by the European
Commissioner Michel Barnier. The Unitary Patent envisaged can't get less
satisfactory than the Commission proposal.

The European Parliament needs to make better use of its prerogatives.
Without its consent there can't be enhanced cooperation under Article 329
TFEU. In view of the fact that Parliament is precluded from proposing any
amendments to the proposed decision, Parliament should remind the
institutions to deliver on its demands from the Gierek report ("43. Calls
on the Commission and the Member States to propose, in the context of the
new Community patent, a procedure for eliminating trivial patents and
sleeping patents").

The Commission should also be pressured to submit proposals for
substantive harmonisation of national patent laws within the EU framework.
Without supplementing substantive approximation a Unitary Patent is bent
to shake and break national practices. EU harmonisation should also be
tried for administrative practices of national patent offices. These
supplementary harmonisation issues stay unaffected by the linguistic

The proposal from the Commission leaves an elephant in the room completely
untouched. Without a consideration of alternatives or an impact assessment
the European Patent Organisation (EPO), a non-EU institution in Munich,
would be tasked with examination. A strong role for the EPO makes the EU
yield any governance influcence over its Unitary Patent. For instance
staff of the international EPO is not subject to EU labour protection and
employement standards, and stays beyond any reach for parliamentary
inquiries and democratic control.

We propose an open tendering process instead. Pro forma the Unitary Patent
should be managed by an EU institution with the actual administrative work
distributed to specialists (at the EPO etc.) on EU terms. The Office for
the Harmonisation of the Internal Market (OHIM) in Alicante (Spain) which
already manages the EU community trademark looks ideal to govern, the
European or national patent offices and private contractors would take
over examination and other administrative tasks. A role for the EU
institution in Spain would also unblock Spanish opposition to an actual
Community Patent.

The European Parliament should withhold its consent before the ECJ has
delivered its opinion on the patent court. Moreover, the enhanced
cooperation mechanism has changed the architecture of project, e.g. with
regard to EU accession to European Patent Convention (EPC). Therefore,
some work still has to be done to negotiate at least the main lines of the
project. The European Parliament should exercise its powers. Commissioner
Barnier can amend their proposal any time to satisfy Parliament or make
otherwise concessions."


Lehne Draft Report: Decision authorising enhanced cooperation in the area
of the creation of unitary patent protection (2010/0384(NLE))

Gierek Report: Putting Knowledge into practice

EPO examiner union: "No Power for the Parliament"

EPO examiner union interview with Alfons Schäfers

Current state

The Legal Affairs Committee of the European Parliament is due to debate On
20 January 2011 a draft report by its chairman MEP Klaus-Heiner Lehne on
the Commission proposal for a Council decision authorising enhanced
cooperation for the creation of unitary patent protection. The draft
report from Klaus-Heiner Lehne proposes that the European Parliament
consents to the Commission proposal for a  Council authorisation decision.
The European Parliament will have to give its consent to the proposal for
an authorisation decision. A vote in the Committee is scheduled for 27
January and in the European Parliament Strasbourg Plenary on 15 February
2011. It is to be concluded by Council in its 10 March 2011 session.

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 (intellectual property) in data processing.


Benjamin HENRION (FR/EN)
Mobile: +32-484-566109
Email: president at ffii.org

FFII e.V. Office Berlin
Malmöer Str. 6          10439 Berlin  Germany
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eMail: office at ffii.org  IRC: #ffii @ irc.freenode.net  http://www.ffii.org

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Association registered in Munich, Amtsgericht München VR 16460
Tax ID: 143/214/80285 at the German tax office in Munich.
Board: Benjamin Henrion (BE), René Mages (FR), Hartmut Pilch (DE), André
Rebentisch (DE), Stephan Uhlmann (DE)

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