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European Parliament adopts deeply flawed unitary patent, gives up power over innovation policy

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Today, the European Parliament has adopted a proposal to create a patent with unitary effect for Europe. This decision will leave Europe with a patent system that is both deeply flawed and prone to overreach. It also ends democratic control of Europe's innovation policy.

"We are disappointed that so many MEPs were prepared to throw Europe's researchers and innovators under the bus just to achieve a deal, any deal" says Karsten Gerloff, President of the Free Software Foundation Europe. "It is natural that after nearly four decades of discussions on a single patent system for Europe, most of those involved simply want the debate to end. But we would have expected more of our elected representatives."

Intense criticism from all sides

In adopting the proposal, MEPs chose to disregard intense criticism of the proposal from all sides of the debate. Patent lawyers, independent legal experts, SMEs and civil society groups such as FSFE all voiced their concerns to MEPs ahead of the vote. FSFE recognises the important work done by some MEPs, in particular the Greens/EFA, in informing their colleagues about the serious flaws in the proposal.

With this decision, the European Parliament has essentially given up its power to shape Europe's innovation policy. That power will instead fall to the European Patent Office, which has a track record of awarding monopoly powers on the widest possible range of subject matter.

"We are alarmed to see both legislative and executive power in the hands of a single agency" says Karsten Gerloff. "The separation of powers is a fundamental principle of democracy. We regret that in today's vote, many MEPs were prepared to give this up in exchange for an ill-conceived compromise."

Software patents, fragmentation and confusion

The text adopted today will lead to fragmentation of jurisdiction and of jurisprudence across the European Union. Creating divergence and confusion, the text will make the patent system much harder to navigate for small and medium enterprises. The European Patent Office will have much greater leeway to continue its practice of granting patents on software. This will harm competition and innovation, and create unnecessary risks for businesses and software developers. It is also likely that the adopted text will lead to more intense patent litigation in Europe, including by patent trolls.

FSFE is also concerned about the lack of a research exception and of a provision for compulsory licenses. According to the Max Planck Institute for "Intellectual Property", the envisioned patent court is incompatible with European Union law. These fundamental flaws mean that considerable uncertainty remains about the way in which the patent system will operate in future.

Next steps

According to the European Parliament's website, "the international agreement creating a unified patent court will enter into force on 1 January 2014 or after thirteen contracting states ratify it, provided that UK, France and Germany are among them. The other two acts would apply from 1 January 2014, or from the date when the international agreement enters into force, whichever is the latest. Spain and Italy are currently outside the new regime, but could decide to join in at any time."

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