[ Towards Unitary Patent ]

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The day the Software Patents Directive was rejected, Michel Rocard, rapporteur on the Directive, warned the European Patent Office (EPO) :

"Rejection is a message directed at the European Patent Office. The European Parliament has refused to ratify the recent judicial errors (…) If these errors were to continue, it now seems clear that a parliamentary majority would emerge to put a stop to them."

Since then, the EPO however continued both to deliver software patents and to push for formal approval of its nasty practices, starting with the European Patent Litigation Agreement (EPLA), that was supposed to create among signatory states an integrated judicial patent system with uniform rules of procedure within the EPO structure. Smart idea, as it would have de facto legitimated the old case law on software patents.

The EPLA was abandoned in favor of another big project : the Unitary Patent, which simply gives an unitary effect in all members states to all patents granted by the EPO, and is currently under examination process at European Parliament.

Whereas arguments in favor are mainly about simplifying the system and reducing overall costs - which is fine - the Unitary Patent regulation proposal does not mention any kind of patent quality requirements nor substantive law.

In other words, even the most trivial patents, such as software patents, but not only, will be enforceable all over Europe, just as any national patent.

While a proper regulation on European patent system is needed, patentability criterias should be the first to be defined. The present regulation does not contain any reference to what is needed for an invention to be patentable.

If the EPO was a democratic institution, one could say, let's trust its forty years case law.. But it is not the case. The EPO stands out of European institutions and is financed depending on the patents delivered. This means that the more patents there are, the more money they make. This leads to an unavoidable decreasing of patents quality and an increasing flow of trivial patents.

As foreboded by Michel Rocard in 2005, will a parliamentary majority emerge to "put a stop" ?

Update :

On December 11th, 2012, the Unitary Patent enforcing the EPO case law was adopted by the European Parliament. An inevitable flow of software patents all over Europe is to be expected.

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