The EU’s United State of Patents

Among the key elements: a single EU patent entity, comprising registration of patents, an "adjunct" system, in which somehow national patents would still apply, but the EU body would oversee them and grant "unitary effect" on an applicant-voluntary basis and a requirement for an English translation to be submitted with all patents. Resulting legal challenges (if any) would be heard at the European Court of Justice (ECJ).

The question may be asked, especially by those of us who are more familiar with a single overarching Federal agency for patents, and a single Federal Court body to handle litigation: isn’t there already a unified patent office for the EU?

Yes and no. There IS a single patent organization, headquartered in Munich, whose main responsibility is approving and issuing patents that take effect throughout Europe -- and, to a limited extent, providing a venue for the ensuing litigation (if any). The EPO (European Patent Office) is one of two divisions of the overall European Patent Organization (typically abbreviated as “EPOrg”), the other being the Administrative Council (for the sake of simplicity, I’ll continue to inaccurately refer to the organization as a whole as “the EPO”).

The EPO does not issue a single “unitary” patent, only ‘patent bundles’ which are composed of largely identical but nevertheless individual patents for each member state, whose responsibility it is to handle the majority of patent enforcement and litigation (which is why Apple and Samsung, for example, have simultaneous separate cases in the courts of a number of EU member countries). Also, the member states each collect their own renewal fees, a not-insignificant total for any given holder of European patent bundles.

Also, the EPO does NOT consist solely of EU member states. The jurisdiction overlaps to a great extent, but the “Contracting States” and “extension states” of the EPO include several nations which are not EU members.

Currently, the main multinational patent entity is the joint Trilateral Patent Offices, consisting of the EPO, the US PTO, and Japan’s JPO. By way of comparison, the United States Patent and Trademark Office is an agency of the Department of Commerce, with a Director that is appointed by the President and confirmed by the Senate. The Japan Patent Office is an agency under the Ministry of Economy, Trade, and Industry, from whose upper ranks the JPO Commissioner is appointed (BTW: copyright issues in Japan are separately handled by the Ministry of Education’s Agency for Cultural Affairs).

Is the difference academic? On one hand, it is debatable how much the actual practical level of Federal autonomy differs between the US, Japan, and Europe. Despite an increasingly direct relevance to consumers, patent law has never historically been a ‘make or break’ issue for democratically elected candidates; external influence upon policy comes largely from concerted lobbies directed toward existing officials.

In the US, the general political ideology of the President and Senate may certainly be expressed by the directorial appointee -- but it just as well may not; in any case, considerations of commerce (e. g., innovation versus exclusivity) are typically well-removed from considerations of the effects upon consumers’ freedom and privacy. Consumer and human rights advocates of issues such as software patents will often find themselves at a vast disadvantage to corporate influence, bereft of widespread voter awareness and the concomitant ‘political will’.

The example of software patents is not a cursory one. Compared to the US and Japan, the EPO has been much more reluctant to issue software patents, due to the interpretation of Article 52 of the European Patent Convention. The EU Directive on the Patentability of Computer-Implemented Inventions was drafted a decade ago to bring Europe much more in line with US-style software patent status (a trend perhaps symbolized to some extent in the unitary patent proposal’s requirement for an English translation).

This would of course be a boon to those deriving revenue from a boom in the increasing number of tech patents, such as corporations and patent trolls, not to mention patent lawyers and (arguably) the agencies themselves. The Directive was ultimately defeated due to concerns over legal sovereignty (and individual member revenue from patent fees, undoubtedly), but the goals were merely subsumed into the later push for unitary patents. One can virtually be certain that unitary patents will mean more software patents.

Along similar lines, the EU is a (somewhat conflicted) partner in the continued drafting of the Anti-Counterfeiting Trade Agreement (ACTA), a joint attempt between government and corporate copyright interests to establish a global body for the purpose of intellectual property enforcement. Like ACTA, the unitary patent proposals have been drafted largely behind closed doors -- and like ACTA, the non-governmental status of the European Patent Office allows for corporate influence while all but eliminating any kind of democratic input.

It’s not simply an issue of transparency; there is also a concern that a unitary EPO would potentially violate EU trade agreements, as well as the legal character of the EU itself. The EPO even admits on its website that “The UPC Agreement will be an international treaty between EU member states. It must therefore be adopted at a diplomatic conference and then ratified, normally by national parliaments.”

However, the prevailing opinion is that the larger EU body will simply accept the JURI draft; indeed, less than a day after the draft was presented, the opinion of the ITRE (Industry, Research and Energy) Committee of the European Parliament was in favor of approval, and the Members of the European Parliament were invited to negotiate, but only “on the explicit requirement to not change anything at all in the architecture of the project.”

Nevertheless, it must be stated that the unitary patent draft is still not technically offering a ‘unitary patent’; due to the proposed adjunct system, there would remain patent bundles that merely share a ‘unitary tag’ -- on a voluntary basis, to satisfy the respective nations. This is already too much for some; Italy and Spain have so far removed themselves from the process on the basis of the language requirements, and we may expect any number of ex post facto challenges to the voluntary status when member states chafe against unified patent court decisions.