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

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Sunday, February 11, 2007

Rough Weather Ahead For EPLA.

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[1] 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.

Technorati Tags:

Patents

Labels: EPLA, Patents

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(1) comments

Thursday, February 08, 2007

UK: Law Lords Won't Bother With Patents On CIIs.

my earlier posting I had reported on speculations as to a possible final judgement of the House of Lords concerning patentability of computer-implemented inventions (CIIs) in view of the

Decision in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from the High Court of Justice Chencery Division (Patents Court) - Neutral Citation Number: [2006] EWCA Civ 1371 - given by The Hon Mr Justice Lewison, The Rt Hon Lord Justice Jacob, and by The Rt Hon Lord Justice Neuberger, the case known as Aerotel Macrossan. Now there is a

report in

ITweek saying:

"[...] The Law Lords refused Australian businessman Neal Macrossan leave to appeal against a court decision last year that his invention of an automated system that compiles the necessary documents for incorporating a company in the UK could not be patented.

A patent application for the web-based system had been rejected by the Court of Appeal in October on the grounds that it was a 'business method' and a 'computer program', both of which cannot be patented under patent law.

But Macrossan's lawyers had argued that the Court of Appeal judges had used new criteria for judging what constituted a successful patent application that were out of step with those used in the rest of Europe and that there was a need for clarification on the points of law surrounding what software is patentable.

The Lords rejected this line of argument, claiming the case 'does not raise an arguable point of general public importance'. [...]"

So, the case 'does not raise an arguable point of general public importance'? Huh?

Anyway, see also further commentary on the

IPkat Blog.

[UPDATE 2007-02-15] See also

Mr. Macrossan's comments on the Lords' decision and

further material on that case on the

ukcorporator.co.uk website.

Technorati Tags:

Patents

Labels: Aerotel, Macrossan, Patents, UK

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(0) comments

FFII About To Conquer The New World.

It looks as if

FFII e.V. is about to start a crusade

to proselytise the masses in the United States in their fight against patents on computer-implemented inventions aka software patents:

"[...] Why is US patent reform the answer to the problems which are dealt with, which manifested in the multimillion Microsoft-Novell deal? The answer is simple: Andreas Jaeger has suggestions for reform but the debate in the USA does not take off. As long as companies defend themselves with patent deals and patent portfolios, or waste their time on discussions about prior art searches, everything remains lost.

However, there is chance for substantial reform. Interested US citizens can take the European lesson and become founding fathers of FFII USA. At least a mailing lists exists for the sleeping nation which handed over software liberty to patent agents. [...]"

I guess that it will be a tough challenge for FFII to gain substantial political support throughout the U.S.

Technorati Tags:

Patents

Labels: FFII, Patents

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