The European Parliament demanded several improvements to a proposal by the European Commission to sign up to an agreement on patent litigation in Europe, a spokesman said Thursday.
The commissioner in charge of the internal market, Charlie McCreevy, wants the European Union to become a signatory to the European Patent Litigation Agreement (EPLA)—a draft accord tabled by the European Patent Organization (EPO).
Once ratified, the EPLA would create one single patent court for all 31 countries that are members of the EPO, including the 25 members of the European Union. Presently, patents can be disputed in individual countries.
McCreevy supports the EPO’s claim that one single court would create more legal certainty for those involved in patent disputes in Europe. Participation in the EPLA would be a pragmatic alternative to the long-delayed attempts to agree on one single patent regime for the European Union, known as the Community Patent, McCreevy said earlier this month.
He said he hasn’t given up on the 30-yearlong aim to create a Community Patent, but he is pursuing the EPLA agreement as a plan B—an interim step, designed to help innovation in Europe in the absence of a Community Patent.
However, members of the European Parliament sought “significant improvements” to McCreevy’s plan B, said parliamentary spokesman Federico de Girolamo. “A vast majority of [members] called for changes, including assurances of the independence of judges and clarity on the costs of litigation,” he said.
They have also asked their own lawyers to find out whether the overlap of union and EPO laws could pose a problem, De Girolamo said.
“They didn’t reject the EPLA idea outright,” he said, explaining that the position, which was supported by about 500 Parliament members, was a compromise between the different political parties. The socialists, for example, were opposed to the EPLA idea from the start, while other large parties were more supportive of the idea, De Girolamo said.
While asking the commission to go back and redraft the proposal, the Parliament asked it to consider alternatives, such as for the European Union to join the EPO, instead of signing up to its latest agreement. It also urged the commission to consider reviving the Community Patent.
Supporters of open source and free software believe the EPLA is a disguised way of imposing software patents in Europe.
Florian Mueller, founder of the NoSoftwarePatents campaign that last year helped to block the passing of a union-wide law on the patenting of computer-implemented inventions (dubbed the software patent directive), said the EPLA is even more onerous than the law he helped defeat.
“It’s just another attempt to give software and business method patents a stronger legal basis in Europe than they have now,” he said in July at a hearing in Brussels. “From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had. Not only would software patents become more enforceable in Europe, but also patent holders in general would be encouraged to litigate,” he said.
The patent court proposed under the EPLA would use EPO judges and apply the EPO’s approach to the patentability of software, Mueller said more recently in blog postings. National patent offices take a more guarded approach to issuing software-related patents. The EPLA would force all countries to apply the same approach as that of the EPO, he said.
Mueller also argues that there is no need for an EPLA because less than 10 percent of patent disputes involve more than one country. “We are talking about between 75 and 150 patent disputes a year, and most of those relate to disputes involving just two countries, rather than three or more,” he said on his website.
Earlier this week, the EPO hit out at criticism from parts of the software industry that the organization is in favor of granting software patents.
“The proportion of computer-implemented inventions is obviously growing, as innovation tends to rely more and more on the information technology incorporated in a growing number of devices, from cars to washing machines to cell phones,” EPO President Alain Pompidou said at a conference in Lisbon on Monday.
“However, let me make it quite clear that the EPO does not have its own agenda on software patents. In accordance with the 1973 European Patent Convention, the EPO does not grant patents for computer programs as such, but it does grant patents for computer-related inventions that are novel, inventive and of a technical character.”
“The non-obviousness criterion, as well as the novelty and the technical character requirements, are strictly applied by the EPO,” Pompidou said.
Mueller was unimpressed with Pompidou’s argument. “His ‘computer-related inventions’ include such concepts as a context menu or checking for virus activity in a computer and are essentially the same as the software patents granted by the USPTO [the U.S. patent office], just that the descriptions are phrased slightly differently over here,” Mueller said.
He and his fellow lobbyists working on the “NoSoftwarePatents” campaign have drawn up a list of the worst software patents to be passed by the EPO this year.
Top of the list is patent number EP1044400: an Internet-based service for updating a programmable control device. The list can be found here.
McCreevy hoped that by going down the EPLA route, he would avert a full-blown lobbying war between the pro- and antisoftware patent groups. But it now seems that even this more modest initiative will be fiercely debated, and the delicate issue of software patentability will remain center stage.
–Paul Meller, IDG News Service (Brussels Bureau)
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