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Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

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Tuesday, October 03, 2006

European Patent Politics in Troubled Waters.

On September 28, 2006, Mr. Charlie McCreevy, European Commissioner for Internal Market and Services, provided an Official Commission statement titled

Future action in the field of patents in the European Parliament's Plenary Session:

"[...] The Community Patent remains blocked in the Council. But recognising the economic importance of patents, I felt it was not a good thing to leave the entire patent agenda in limbo. So, earlier early this year, as you know, I launched a broad consultation of all interested parties on future patent policy in Europe.

The consultation has shown that industry favours the Commission's effort to simplify the patent system in Europe and to make it more cost-effective. There are two major issues here, languages - or translation costs - on the one hand and the jurisdictional system on the other hand. There is strong support for the introduction of a Community patent. However, industry is not enamoured of the political compromise reached in the Council in 2003 on the Community patent. It rejects the proposed solutions on both language and the jurisdictional system. Because they don't achieve the cost reductions and simplification of the patent system that industry is calling for.

In parallel, there is a strong call for the improvement of the existing European Patent system, established by the Munich convention, by the successful conclusion of a European Patent Litigation Agreement (EPLA) on jurisdiction and by the ratification and entry into force of the London Agreement on the language regime. [...]"

The

EPLA proposal has in particular drawn critics by Members of the European Parliament.

Ms. Vicki Salmon responded on behalf of

"[...] In his speech to the European Parliament last week, Mr McCreevy urged MEPs to back the new European Patent Litigation Agreement (EPLA), saying it would bring about a 'better, cheaper, more reliable patent system'.

However, some MEPs have already tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic.

Leading UK patent attorney, Vicki Salmon immediately hit back at the nay sayer:

'Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward,' she said.

Speaking on behalf of the CIPA she added:

'We will obviously follow events closely and will use all our influence to help create an efficient and effective court for the users of the European Patent Systems, and in particular British businesses.'

If the EPLA comes into force a single European Patent Court would be created, so patent holders could sue infringers in one place. At the moment they must bring multiple actions in all the separate countries of Europe.

'We in the Institute are in favour of such a move,' said Ms Salmon, 'provided, of course, the details are practical and do not result in an arrangement that is too expensive.' [...]"

See also my earlier posting

here.

And Mr. Florian Müller, well-known activist, fuels

along with other usual suspects some theories saying that

in the essence EPLA is in fact nothing else than another attempt of the evil forces to advance what they call "software patents". Do they have something like a persecution complex with regard to evil institutions desiring to promote "software patents"? At least Mr. Müller admits that

"[...] SwPat directive was not really about 'introduction' of software patents, but about their legal status in EU member states [...]"

Many anti-patent activists nevertheless continue to blather about "introduction" of "Software Patents".

The other construction site besides EPLA is the

London Agreement concluded in London on October 17, 2000, with the aim of creating a cost attractive post-grant translation regime for European patents. The Parties to the Agreement waive, entirely or largely, the requirement for translations of European patents to be filed in their national language. This means in practice that European patent proprietors will no longer have to file a translation of the specification for patents granted for an EPC Contracting State Party to the London Agreement and having one of the three EPO languages as an official language. Where this is not the case, they will be required to submit a full translation of the specification in the national language only if the patent is not available in the EPO language designated by the country concerned. Up to now the London Agreement is not in force. At least France has to perform ratification before this can happen.

Recently a reader of this Blog wrote me:

"[...] The French Conseil Constitutionnel decided that London Agreement did not contravene the French Constitution. This decision has been published in the 28/9 edition of the French Official Journal at

http://www.legifrance.gouv.fr/
and on the website of the Conseil Constitutionnel at

http://www.conseil-constitutionnel.fr/.
Such a decision was expected but compulsory to get the London Agreement ratified. It hence paves the way to the ratification. Albeit some say that the French Parliament will not ratify before the elections of spring 2007 (presidential and legislative) for lack of time or else, I think they will, because it is not a controversial topic to be dealt with. And government and deputies avoid dealing with controversial topics on the edge of elections. [...]"

See also my earlier posting

here.

The widespread acceptance of English is a cornerstone of every cost-efficient global communication. I heavily rely on it. I trust that if I write in English to a colleague or client located somewhere overseas, be it in Asia or elsewhere, that my message is readily understood. I would not be able to afford Japanese, Chinese or other translators if English were not accepted as some sort of lingua franca. It would be a nightmare if business people all over the world start refusing to accept English language but insisting to be addressed exclusively in their own local idiom. This week, German weekly magazine "DER SPIEGEL" runs, in the print edition, a 14 pages title story "Deutsch for sale", lamenting not only that in Germany some odd mixture of German and English called "Denglisch" is gaining ground in everyday life but also offensively attacking the use of English in business, administration and in academia in Germany and by native Germans. In earlier times, when the founder of "DER SPIEGEL",

Mr. Rudolf Augstein, was still in office, "DER SPIEGEL" was a liberal publication promoting modern ideas against various backward ideologies. But that title story with its narrow-minded gist of promoting some cosy feeling of Deutschtum bei keeping clean the German language was the worst text I ever saw on this topic (see also this abbreviated

on-line version). In fact, we simply cannot afford clinging to umpteen local idioms in a patriotic mood. Even the European Union staffed with a famous

Translation Centre will eventually have to learn this.

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[UPDATE 2006-10-04] Mr. Florian Müller

reports on the outcome of the deliberations in the European Parliament as follows:

[...] Initially, the chief negotiators of EPP-ED and ALDE wanted the EP to say an unequivocal Yes to the Commission's plans to get the EPLA ratified with the involvement of the EU. At the same time, the PES, Greens/EFA, GUE/NGL and IND/DEM wanted to say a clear No. On the bottom line, the compromise between EPP-ED, PES and ALDE is to say Maybe, but- and states clearly that 'significant improvements' to the proposal are required and that an important piece, the Rules of Procedure for the envisioned new centralized European Patent Court, is missing. [...]

And, finally Mr. Müller admits what long had been vigorously denied by many activists (emphasis added):

[...] And more or less the same people who now criticize the EPLA (without necessarily being against the idea of a centralized patent court) made a counterproposal that would have abolished software patents in Europe (and admittedly, more than just software patents). [...]

More than ever I feel justified in calling those campaigners "anti-patent activists", not merely "anti-SWPAT-activists".

A reader of the blog has send a comment via e-mail, and I shall re-post it here with permission:

"I mainly agree with your opinion about english. However, the
non-native-speaking english patent agents like us will have hard times by
the time english turns to be a lingua franca: No matter how rich is your
english, you will never be as subtle as an native-english-speaking patent
agent. And, as you know, patents are sublte texts requiring precision, hence
subtleties.

It's gonna make patents writing more fastidious.
Besides, we will have to compete with GB, US agents (and maybe even with the
cheap Indians ones); with the likely exception that the FR or DE inventors
do not speak a perfect english either and will probably find it hard to talk
to a GB or US agent.
Furthermore, I like practicing other foreign languages, german and italian,
whenever possible. This is even one of the reasons I chose to work in the
patent field !

Despite all this drawbacks, I still find it preferable that english become a
lingua franca."

# posted by Axel H Horns : 05 October, 2006 21:55

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