There seems to be rough weather ahead for the EPLA. This treaty would, if ever enacted in its present Draft form, set up a court system for patent litigation cases which is legally independent from the system of institutions as provided by the EU. With orther words, the EU might lose influence in a certain sector of patent politics. While the European Commission reluctantly has moved towards supporting the EPLA, in the European Parliament there some scepticalness appears to prevail.
Anti-patent campaigners fighting against EPLA had, after having got some input from the EU Commission, already as early as July, 2006, contemplated that the EPLA might perhaps not be compatible with mandatory EU Law. By means of a resolution dated October 12, 2006, on future patent policy in Europe, the European Parliament requested its Legal Service to provide an interim opinion on EU-related aspects of the possible conclusion of the European Patent Litigation Agreement by the Member States in the light of overlaps between that agreement and the acquis communautaire and to clarify legislative competences in this field.
Yesterday, IPEG Blog has unearthed some preliminary version of the Opinion. And the result appears to be quite negative:
The Opinion stresses that the competence of Member States to enter into the envisaged EPLA may not be separated from the issue of the existence of a Community competence to conclude that agreement, which may limit or exclude Member States competence Where the Community's competence is exclusive, the Member States may not conclude such an agreement.
Member States may not undertake such commitments outside the Community fiamework; such action would in principle contravene their obligations under Article 10 EC, and in particular the requirement to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.
Compliance with Article 98 of EPLA would prima facie constitute a breach of Article 292 EC Treaty.
It follows that the Community's competence is exclusive for the matters governed by EPLA and Member States therefore are not entitled on their own to conclude that Agreement.
Of course, this non-binding Interim Legal Opinion does not mean that the European Court of Justice would decide along the same lines of thinking. However, it looks as if this obstacle should be taken as a very serious one.
The real matter behind this quarrel over EPLA is twofold:
On a first level, EU institutions, in particular the European Parliament, fear to suffer a loss of political influence on further developments.
On a second level, critics of the patent system argue that the EPLA could be used to enforce patents on computer-implemented inventions as granted by the European Patent Office (EPO). To certain anti-patent campaigners, fighting the EPLA means fighting the enforcement of (certain) patents granted by the EPO.
Politicians acting on the EU level should not forget that there had been a very straightforward way to kill the EPLA: Namely, to establish a reasonably crafted EU Community Patent System along with a related well-balanced system for litigation and enforcement. However, the political class has failed to create such a Community Patent, in the first instance due to lack of readiness to compromise with regard to the question of the language regime. Furthermore, the ligigation system proposed for Community Patents did not win the support of major stakeholders.
What did Mr. McCreevy recently say? "The proposal for an EU-wide patent is stuck in the mud". Right is he.
EPLA does indeed seem stuck in the mud. However, it's not quite the end of an EU-wide patent. EPLA was, quite clearly, designed by the EPO to kill off the Community Patent, the main proposal for an EU-wide patents. EPLA itself is as un-EU as it's possible to get without leaving for another continent.
So the demise of EPLA (which like the villain in a B-rate horror movie is probably not dead but just gathering strength for one more attack) actually opens the door for a real EU patent system, which, finally, is what I'd like to see emerge.
As for EPLA and software patents, I think the heavy lobbying from SAP and Microsoft in favour of EPLA tells the story. It was, after all, SAP that first announced that EPLA meant the victory of EPO software patents over those pesky national courts.