We have identified some serious drawbacks in the initial proposal of the Commission for a regulation on the unitary patent, that are still present in the compromise reached between the Council and the rapporteurs for the European Parliament, and has been voted without any change by the Committee on Legal Affairs (JURI). Moreover, we have provided a thorough analysing raising issues about the legality of the legal basis of this regulation. But these issues were never addressed by the negotiators of the EU institutions.

The plenary vote of the European Parliament has been postponed, officially until the Council has found an agreement about the seat of the central division of the Unified Patent Court, which is supposed to have exclusive competence over litigations concerning unitary patents. Members of the European Parliament MEPs) are urged the take advantage of this delay to officially raise the major issues surrounding the regulation on the unitary patent. The following questions could be asked by any MEP though written questions to the Commission and the Council.

Brussels, Tuesday December 20th, 2011. Press release.

Members of the Committee on Legal Affairs (JURI) of the European Parliament have given a rubber stamp1 on an agreement, negotiated behind close doors2 with the Council, about the introduction of a unitary patent and a unified patent jurisdiction. Unfortunately, today's vote has failed to address major legal issues surrounding this project, which are likely to make the regulation voided by the Court of Justice of the European Union (CJEU). Moreover, the architecture of the unitary patent as voted today betrays the withdrawal from European Union (EU) legislators in deciding about EU policy on innovation for the profit of the European Patent Office, a self-governed non-EU agency, which is notably known to favour software patents against the letter and the spirit of European Patent Law.

• 1. Detailed result of the vote is available on https://www.unitary-patent.eu/content/amendments-juri-committee.
• 2. See “Unitary Patent: the debate will go on in secret”: http://www.april.org/en/unitary-patent-debate-will-go-secret.

On December 1st 2011, the Committee on Legal affairs of the European Parliament has published a press release welcoming with pride that negotiations about the unitary patent have succeeded in reaching a « final agreement » between the Council of the European Union and rapporteurs of the European Parliament. However, issues already raised by April, including questions on the legality of the adopted solution1, are not solved yet. Concerns about powers left to the European Patent Office, which is well-known for its attempts to legalise software patents2, have neither been addressed.

Update: the compromised agreement has been leaked and confirms our analysis that none of the serious issues with regard to the legal basis of the regulation have been addressed and that request from the patent microcosm to get the European Court of Justice as far away as possible from substantive patent law has been rejected.

• 1. Fore more informations on legal issues, see the analysis of the legal basis of the regulation on the unitary patent, or the letter(in French) sent by April to the director of the legal service of the Council.
• 2. For more information on the connection between the unitary patent and software patents, see "Unitary patent and software patents: a case study"

On November 23rd, 2011 the ITRE (Industry, Research and Energy) Committee of the European Parliament has given its opinion on the unitary patent, by voting in favour of the reports1 on the creation of a unitary patent and on the unified jurisdiction. The vote was characterised by a lack of enthusiasm and a blind conformity with the rapporteur's position, Alajos Mészáros. It should however be recalled that the ITRE committee was giving a mere opinion, and that it is the JURI committee that is responsible for this matter. On November 22nd 2011, the JURI committee decided to give a mandate to the rapporteurs for negotiations behind closed doors.

• 1. Reports on the unitary patent regulation and on the unified jurisdiction can be accessed on the European Parliament's website.

On November 22nd, 2011, the Legal Affairs Committee of the European Parliament voted for a mandate, allowing the rapporteurs on the proposal for a unitary patent to pursue negotiations with the Commission and the Council behind closed doors, without any involvement from the rest of the Members of Parliament or any reporting to citizens.

On Tuesday October 11st 2011, the Committee on Legal Affairs (JURI) of the European Parliament held a hearing on the unitary patent regulation and the associated agreement on a unified patent court. Although people heard on this occasion, who were all closely tied to the “patent microcosm”, have had the opportunity to expose their views on the project, some Members of the European Parliament (MEPs) have pointed out the major issue at stake: the degree of autonomy the European Union (EU) wants to leave to the European Patent Office (EPO).

The war between Apple & Samsung provides us with the opportunity to show why substantive patent law with exclusion of software patents should be included in the regulation on the unitary patent.