EU braced for patent-battle revisited

Commissioner Charlie McCreevy will this week outline his patent policy plans to the European Parliament, but his support for a single European patent law is already under fire. 

The European Patent Litigation Agreement would cover all patents.Europe does not officially recognise software as worthy of patent protection; nevertheless, according to critics, the European Patent Office (EPO) has been consistently granting pure software patents despite national courts rejecting them. Naysayers believe that the EPLA would thus ultimately lead to the patenting of software because judges in the new Court (to be established by the EPLA) would be hand-picked by the EPO and would therefore favour software patents. 

They also say that the new system would push up the cost of pursuing a patent lawsuit, thereby creating a hostile legal environment for smaller software businesses. 

Conversely, those in favour of the EPLA say it is an appropriate system that helps to overcome the static nature of the Community Patent Regulation. 

Charlie McCreevy, European Commissioner for Internal Market and Services said: “What industry wants is a one-stop-shop. People don't care how this is achieved. But they want action…I believe the time has come to make a concerted push to improve the patent system in Europe.” 

The answer, he believes is the EPLA - “a unified system which gives clarity and reliability to industry while avoiding both over-centralisation and fragmentation". The EPLA, he says, would also contribute to the urgent need to bring the European system up-to-speed with the legal systems of the software producing superpowers: "It is D-day for Europe when it comes to intellectual property protection...We are facing continuous, and not always equal, competition from the US and Japan, but also from emerging economic superpowers like China or India." 

The joint motion from the PES, Greens/EFA and GUE/NGL demands more "balance between the interests of patent holders and the broader public interest in innovation and competitive markets". It states the EPLA will compromise judicial independence, increase litigation costs and expose SMEs to greater risks. 

They also believe that bestowing central patent-authority on an independent body would be against the principle of a united Europe: “The creation of a non-EU European Patent Judiciary (EPJ) and a non-EU European Patent Court would call into question the commitment of its contracting states (that are also Member States) to the Community courts and the Single Market,” their resolution states. 

Maria Berger, spokeswoman of the PES on legal affairs, explained: "We are all for improvements to the European patent system, but we must continue the search for solutions within the framework of the EU. That includes the need for democratic control and truly independent courts." 

Italian MEP Umberto Guidoni (GUE/NGL) warned: "After the failure of the software patent directive, the EPO has come up with another proposal backed by McCreevy and it's even more undemocratic and dangerous than the previous one. EPLA is about much more than software patents. Still, software patents are one of the key motivations behind it. The Parliament made it very clear last year that we largely disagree with the EPO's granting practice in certain areas. That's why we don't want a new court that would be controlled by basically the same people as the EPO." 

Conversely, the chief negotiators of the EPP-ED and ALDE groups want the Parliament to support McCreevy's push for the EPLA. 

MEP Klaus-Heiner Lehne (EPP-ED) says the EPLA will lead to simplified procedures and lower costs for SMEs: “With EPLA we would have a standardised court procedure in all Member States instead of 25 different ones." He criticised the “anti-innovation MEPs among the Socialist Group”, saying: “They compare 'apples with pears' in order to suppress a competitive and balanced patent system in Europe. The only thing these people have on offer is to dig up the buried 20-language community patent which is never going to work." 

Speaking for UNICE, Dr. Klaus Dieter Langfinger, Vice-President Global Intellectual Property BASF, said the European Patent Litigation agreement “provides an important step in the right direction. Using the existing, well-established and experienced resources in the Courts of First Instance in various countries would make an immediate start possible without having the difficult and time-consuming task of setting up a new court without an existing infrastructure and in particular without a sufficient number of technical judges experienced in patent litigation. The proposed language-regime avoids expensive and excessive translations and thus moves us forward on the road of efficiency. A centralised Court of Second Instance would be the ultimate means to ensure a sufficient degree of harmonisation. Thus, overall, EPLA would be a leap towards consistency and efficiency and we all should support the work done [towards it] to the best extent.” 

Florian Mueller, the software developer who founded the NoSoftwarePatents campaign which lobbied against the 2002 proposal, said: "From a software-patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had: not only would software patents become more enforceable in Europe but also would patent-holders in general be encouraged to litigate." 

The EU has long sought a single Community patent law, under which a patent filed in one member state would be valid in all. But, so far, all attempts have failed because countries have insisted on adherence to their own systems. 

In 2002, the Commission proposed a directive on computer-implemented inventions (CII), but it was rejected in July 2005 by the Parliament because of the associated high translation costs that would hinder competition and innovation. 

Nevertheless, a little more than a year later, speaking at an informal EU finance ministers' meeting in Helsinki on 8 September 2006, Internal Market Commissioner Charlie McCreevy indicated his backing for a European Patent Litigation Agreement (EPLA). The proposed agreement envisages the harmonisation of patent laws across signatory states and the creation of a new European Patent Court. It would also be open to non-EU states. 

Parliament is due to vote on the proposal on 11 October 2006, but three of Parliament’s political groups, the PES, Greens/EFA and GUE/NGL have filed a motion criticising the plan. 

  • 28 September 2006: Statement by Commissioner McCreevy followed by debate in the Parliament on "Future actions in the field of patents"
  • 11-12 October 2006:  Parliament vote on the European Patent Litigation Agreement

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