EU in for new patent fight

As Internal Market Commissioner Charlie McCreevy makes “one final effort” to break the impasse on the EU community patent, campaigners warn that the Commission’s proposal could bring back software patents “through the back door”.

Among the issues that the consultation paper addresses are: 

  • The basic principles and features of the patent system, such as transparency and cost-effectiveness of the application procedure, as well as dispute resolution
  • Possible additional features, besides “unitary, affordable and competitive patent and greater legal certainty” that stakeholders would expect from the Community patent
  • Bringing the European Patent Litigation Agreement and Community Legislation such as Council Regulation 44/2001 and the Directive on the Enforcement of Intellectual Property Rights in line with each other  
  • Approximation and mutual recognition of national patents 
  • Importance of different elements of the patent system

The central issue of the costs incurred in obtaining a community patent, accounted for mainly by translation costs, is not directly addressed by the consultation.

Commissioner Charlie McCreevy  sees the community patent initiative as an important one: "Good intellectual property rules are essential: by stimulating innovation and leading to the successful development of new products, they help to generate growth and jobs. We want to maximise these benefits in Europe by making the single market for patents a reality. This is why I am asking businesses and individuals alike to give me their views on how we should move forward to achieve this. Meanwhile we will of course continue to strive for the Community Patent, which remains central to our policy."

Back on 4 March 2003, the then Internal Market Commissioner Frits Bolkestein 
commented: "At the moment, patent protection in just eight European countries costs some 50,000 euro, around five times as much as in the US or Japan. The Community Patent, on the basis of the current compromise, would halve these costs to some 25,000 euro for 25 Member States rather than just eight - still more than the US or Japan but very much better than the current situation."

Anti-Software patent campaigner Florian Mueller says a clause in the current proposal stipulating that the European Patent Office (EPO) should "apply to the Community patent the case law which it has developed" would make it "extremely likely" for judges at the European Court of Justice or a new Community Patent Court "to follow the EPO's law-bending approach and declare US-style software patents legal in the EU." He added that it was "imperative for our movement to influence the new debate on the community patent on a timely basis, or else we would find it hard, if not impossible, to stop the avalanche".

DG Internal Market launched, on 16 January 2006, a new public consultation  on the Community Patent. The first proposal on the issue was made by the Commission in a Green Paper back in 1997. Even though the March 2000 Lisbon European Council called for a Community Patent to be available by the end of 2001, the proposal has been blocked since its submission to the Council in 2000. The main concern was that the costs of scrutinising patents and of translating them into all or a number of EU languages were going to be too high. Commissioner McCreevy says this consultation is preparing the way for "one final effort" that he will make to have the Community Patent adopted before the end of his term, mid-2009. 

Computer patents have been one of the most contested issues in the EU in the last few years. An exceptional lobbying effort has been made, both by proponents and by opponents of the patentability of computer-related inventions and/or software, to get their respective positions through. On 6 July 2005, the Parliament rejected the proposed directive by 648 to 32 votes. 

  • The consultation ends on 31 March 2006 
  • The Commission will hold a hearing on the Community patent on 13 June 2006
  • Commissioner McCreevy would like to see the Community patent adopted before June 2009
  • Its adoption would pave the way for the EU to join the European Patent Convention

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