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Sunday, April 09, 2006

Anti-Patent Campaigner Sees EPLA as a New Attempt to Make Patents on CIIs Enforceable in Europe.

The well-known campaigner Mr. Florian Müller has opened

a new theatre of anti-patent campaigning: The

European Patent Litigation Agreement EPLA:

"[...] The EPLA would change the judicial system in Europe for patent litigation. Any dispute involving a patent granted by the European Patent Office (EPO) would go before a new European Patent Court (EPCt). The judges serving on the EPCt would be handpicked: unlike the national courts that decide on patent infringement cases now, the EPCt would (almost certainly) have the EPO's philosophy with respect to software patents. The EPCt would uphold the kinds of software patents that national courts throw out now. And the EPCt would probably have a general tendency to rule in favor of right holders rather than the defendants.

If we talk and think too much about the community patent, we only distract ourselves from the new row over software patents in Europe, which has already begun and which is all about the EPLA. Microsoft, SAP, the Business Software Alliance, UNICE (an umbrella organization of various big industry associations from all over Europe), the EPO, the patent extremists in certain national governments, the associations of lawyers in general and patent attorneys in particular: they all push for the EPLA like crazy. [...]"

This appears to me as a crude mixture of facts, errors, and innuendos:

One of the characteristics of the EPLA is that litigation cases will, in the first instance, go to local courts, not to a centralised European Patents Cort.

There is no doubt that also under the current system of patent litigation in place throughout Europe, patents on computer-implemented inventions (CIIs) are already enforceable. It is true that after closure of Opposition Proceedings before the EPO European Patents can in principle be revoked (nullified) by national Courts if there are sufficient reasons. These reasons are governed, however, by the European Patent Convention EPC, not by national law. In Germany, the Federal Patents Court ("Bundespatentgericht") seated in Munich is competent to hear such nullification cases. Afterwards cases can go up to the German Supreme Court ("Bundesgerichtshof", BGH) seated in Karlsruhe. In the past both Courts have made perfectly clear that they are in principle willing to uphold patents on CIIs, provided that certain criteria of technicality are met. It is true that there do exist or at least can exist borderline cases where patents on CIIs granted and uphold by the EPO and the Boards of Appeal of the EPO are or will be revoked by the Federal Patents Court and/or by the German Supreme Court. It had been the intention of the EU Commission to eliminate such divergencies by the Draft Directive on the Patentability of CIIs which eventually failed during the second reading in the European Parliament last year. But nevertheless it appears to be quite irresponsible to argue that under the current patent enforcement regime infringers of patents on CIIs are safe.

Allegations indicating that "hand-picked judges" would be political slaves of the EPO system are merely embarassing lapses if not underpinned with substantial proof.

An enlarged version of Mr. Müller's tractate comprising the EPLA-related call to the arms is available

there.

And, why do many patent people support the EPLA? Well, I think because it serves the society by providing an improved way of enforcing patents based on local courts but harmonised on a European level.

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An interesting view on the EPLA. My reading of the EPC is that it quite clearly excludes computer software ("CII") from patentability, for reasons that we can discuss elsewhere. Now, you seem to disagree with this reading, and your implication is that the EPC has always allowed software patents... I recall one day in 2000 when I actually asked the EPO if I could consider patenting a new method I'd designed, a pure software patent. The answer was a clear "no", and the difference between this stated position, and actual EPO practice, even at the time, is part of the reason why I'm involved in this issue at all. But I digress. My real question is this: under the EPLA, do you believe that current EPO practice would be enforced on national courts, or not? By current practice, I mean of course the interpretations of the EPC article 52 that have allowed pure software patents (and I can list thousands of examples) to be granted.

# posted by Pieter Hintjens : 12 April, 2006 19:13

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