A Few Comments On The EU Council's Conclusions On An Enha...

The European and EU Patents Court (EEUPC) is said to have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of EU patents and European patents. If the Court would have been based on the EU treaties alone, it might have competence with regard to conventional European bundle patents as granted by the European Patent Office (EPO) only as far as the territorial extension of the EU goes. Countries like Turkey, Switzerland or Norway would be left out. This would have been some sort of disfigurement, no doubt. But in return there would have been a realistic chance that the bundle consisting of EU-wide patent plus EU patent court would mature into reality. What we now have is the need of obtaining a ratification in each affected country. What will happen if at least one country fails to ratify?

Outsourcing power of judicature to some body external to a sovereign nation is always a big thing in terms of constitutional law. This sort of external courts is well established in the EU as well as in the EPC frameworks. But what appears to be attempted now is to create another independent path of trans-national judicature power. Some countries like Denmark will require, on reasons based on the own constitution, extremely high quora in parliament or, in lieu thereof, a referendum. What might happen if the Danish Government fails to obtain a 5/6 majority in parliament when the ratification of the EEUPC Agreement is on the agenda? They will have to ask the Danish people to accept EEUPC by a majority of 50% of the votes cast.

I am inclined to show some attitude of scepticism when it comes to instances of direct democracy, i.e. to a referendum. Like it or not, I'm pretty afraid that, when called to the referendum ballot boxes, people love to answer not exactly the question as posed on the ballot sheet but some related, different question suggested by interested stakeholders during the campaign. When i.e. analysing aspects of the rejection of the predecessor of Lisbon Treaty, namely the European Constitution, by the French constituency in 2005, one might get the impression that many voters had answered not the question 'Should the EU work as laid down in the EU Constitution Treaty' but another question like 'Would you enjoy to slap your present Government into the face', enthusiastically responding to the latter with 'Yes!'. Also the rejection of the Lisbon Treaty by the Irish in 2008 might have been based on questions of tax and abortion politics which were not exactly the same as to the functioning of the bodies of the EU.

What would happen if an International EEUPC Agreement is subject to a referendum? Not much imagination is necessary to anticipate that anti-patent folks would try hard to get a heyday. They might me tempted to tell the people that the entire EEUPC is nothing else than some sort of sinister plot to make evil software patents enforceable throughout Europe. Patent insiders would face an uphill struggle to explain the benefits of EEUPC against heavy propaganda from a grand coalition of Greenpeace, FFII, various Pirate Parties and other stakeholders, insisting that EEUPC is evil because of it strengthens the patent system which in itself it is superfluous at least, if not choking innovation, and, hence, evil. Of course, in reality those folks are caring about their sectoral issues - be it in the field of biotechnology or IT - far too seriously. Centralising the patent courts in Europe merely as a means to make so-called software patents enforceable would be an absolute non-starter. You need a wide acceptance in all quarters of the Industry in order to push such plans into reality - not only by beneficiaries of certain sectoral patents under debate. Creating EEUPC is a much bigger thing than any of the sectoral discussions we had before. But to deliver this message against populist anti-patent propaganda would surely be a tough issue.

We still don't know which points of law have been passed by the EU Council to the European Court of Justice. Why this kind of intransparency caused by unnecessary secrecy? It seems that at least some of the EU Member States feel uneasy when it comes to an EEUPC Agreement. Why are those Governments so shy that they don't want to disclose which EU Member States were on the basis of what sort of grounds anxious that EU law might be violated by this roadmap? At least there might well a chance that the ECJ kills the EEUPC Agreement approach, thereby bringing back the entire project to the well-known basis of the EU Treaties.

Another void in last week's conclusions of the EU Council is the languages issue which simply has been factored out. We know that some EU Member States favour machine translations, Governments obviously hoping that the highly political question of the equipollency of all languages spoken in the EU might, by virtue of this technical trick, vaporise into thin air. I don't buy this approach: Would the team of experts at the EPO which allegedly has hosted a successful demonstration of machine translation technology please be so kind and publish some samples of their machine translations on the EPO website so that the general public can make up their mind as to the potential of this technology in the framework of the patent business?

I guess that the language issue in the field of patents truly mirrors the politics of babylonian language mess in the EU at large. There clearly is a way out, namely to accept English as a second Official language - not restricted to patents - in all EU Member States, mitigated by a transition period of several decades. But despite the fact that even today a significant proportion of the EU population already has some command of the English language, in particular in the Scandinavian region, national egoisms prevail, in particular in some of the countries in the Mediterranean region. Folks cultivating national pride and resisting English as a second language should think twice: In fact, if they ever should think of opposing this or that law in their own country which they don't like due to whatever reason, their respective Government will shrug the shoulders, pointing to Brussels, arguing: 'We can't do anything about that, we only have cast a mandatory EU Directive into our national law.'. And, changing EU laws appears to be virtually impossible. Why? Well, you would have to organise political majorities not just at home but also in a large number of of he EU Member States. Ever tried to expand a NGO which is quite successful in, say, Germany, to France, Spain, Czech Republic, Poland, and so on? The different national languages are an almost insurmountable barrier for creating a pan-European general public which has the potency to organise itself as a serious counterpart to the EU bodies. From the perspectives of the functional elites in politics and industry, it is a classical divide et impera game: Neither Governments nor big companies do have any problems sending representatives fluently speaking foreign languages or, if necessary, paying for translators and interpreters. But the pan-European constituency is sharply divided into domains of different national languages, a barrier which currently is still insurmountable for many. Fostering the adoption of English as a universal pan-European second language might be a very interesting project, and if the Governments were more courageous, they could start therewith in the field of patent law.

(Photo: (C) 2009 by Furryscaly via Flickr.com under a Creative Commons BY-SA licence.)