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The Unitary Patent And Why We Should Be Worried

Friday, November 23, 2012 0:57

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By WENDY COCKCROFT The Unitary Patent hasn’t been getting the attention it deserves. This is because we’re fighting off surveillance, attempts to take over the internet, and three treaties. Oh, and ACTA keeps threatening to come back from the dead in some way, shape or form. Meanwhile, time is running out for fending off the Unitary Patent, which, if we let it through, will bring software patents (and patent trolling) in by the back door.

What it is

The Unitary Patent as a concept is, on face value, a good idea. It provides the ability to enforce or challenge a patent in a single action everywhere in the European Union apart from Italy and Spain, a significant improvement on the situation at present. Currently, patents granted by the European Patent Office (EPO) in Munich must be challenged or defended in national courts. Not only is this expensive, but it can cause confusion when different courts reach different conclusions. – Science|Business

Let’s be honest, we do need to harmonize Europe’s patent laws. The patchwork of laws we have now are only applicable in their respective countries and enforcing them if they are infringed in another country is a nightmare. If you decide to be clever and register your patent in the European Patent Office (EPO) in Munich, Germany, you have to prosecute infringement in a national court. If the infringer is from a different country, the courts there might reach a different decision based on their national laws. It’s expensive, confusing, and needs to be resolved.

What’s the problem?

Another reason for promoting the Unitary Patent, according to EU Internal Market Commissioner Michel Barnier, is

Europe is falling behind the US and China in number of patents granted. “The new rules, once in place, will increase the potential for inventions and innovation within the European Single Market and reassert Europe’s competitiveness,” said Barnier, who believes the first unitary patent will be registered in 2014. – Science|Business

Does anyone apart from me see the problem with this nonsensical statement? He honestly believes that the skyhook potential for innvoation is in the patents that are registered, not the inventions themselves. This denies the potential of FOSS (free and open source) as if it didn’t exist. Perhaps they think it’s for amateurs and only professionals spend huge piles of money on paperwork that can easily be overturned by a troll with a big enough war chest; it’s actually cheaper to settle than to fight back.

With all the emphasis going on the patents instead of the products, I forsee even more outsourcing to keep production costs down because, when the patent is the product, who cares where the items it covers is made? We don’t need that nonsense here. Okay, it does actually happen but it’s not as widespread or destructive as it is in the United States. See my rather heated discussion with Policy Officer Stephanie Parry of the Copyright & IP Enforcement Directorate for details. Needless to say, since these people believe that patents themselves are important, there’s no reason to believe they won’t increase their scope until patents on software becomes more common, and trust me, they’re trying to make that happen.

There’s also the matter of the new patent court. It will be hosted in three locations — Munich, Paris and London — the three biggest sources of invention in the EU, each with its own deep-seated legal traditions and patent case-law. The trouble is, it won’t be accountable or under the aegis of the European Court of Justice, so any decisions made there will be final. The policy blog Unitary Patent has some background on the dangers presented by the Unitary Patent proposals as they are now:

On June 29th, 2012, the Heads of State and government of the European Union have proposed [sic] to remove articles 6 to 8 from the regulation on the unitary patent. But, such a removal has been found to not comply with EU law, since these articles were defining the very substance of the rights conferred by unitary patents, namely the definition of direct and indirect infringements, and exceptions to these rights. Without these articles, the regulation would have failed to define the minimal substantive rights attached to the unitary patent, in contradiction with the legal basis in EU treaties which authorizes the EU to create such an unitary patent. Therefore, the European Parliament has rightfully declared this removal unacceptable and has postponed its plenary vote on the project. The confessed purpose of this removal was to avoid any overview by the Court of Justice of the European Union (CJEU) on issues of substantive patent law.

Simplified version: all aspects of patent law pertaining to exceptions and to limiting the scope of the patents will be nullified. Basically, the patent holders’ rights trump all. Thankfully, the European Parliament is having none of it. Nonetheless, the secret meetings continue:

On Monday 12th of November, the Legal Affairs Committee (JURI) of the European Parliament held an extraordinary debate about the unitary patent, which was attended by Michel Barnier, the European Commissioner in charge of internal market. According to our sources, he has welcomed with the compromise found in the Council by the Cypriot Presidency. However, and as April highlighted it, this solution infringes the Union Law, and does not provide any democratic safeguard. These questions have been cleared out, even though the Commission is aware about the likely unlawfulness of this project. – Unitary Patent Blog

The upshot of this is that EU member states are scheduled to discuss draft legislation at a plenary meeting on 10th December.

What can we do?

The Internet Freedom Movement has a campaign on at the moment to get people to contact their MEPs and ask them to vote against the Unitary Patent proposals and reject the patent court. We don’t need another court and the proposals are against EU law and the interests of the European people. Get involved and help us fight it off. The all@europarl link Rick provided for the ACTA fight had to be disabled after it got spammed when we’d finished using it, so I’ve used the information he provided to get the list of the MEPs email addresses and made a list of them in the campaign post. As I’ve already sent my message, I can confirm that they all work and I’ve pruned the ones that don’t. Please help us fight this off. We don’t want patent wars in Europe and we don’t want excuses to tighten the already onerous copyright laws. http://falkvinge.net/2012/11/23/the-unitary-patent-and-why-we-should-be-worried/

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