In the German Intellectual-Property postil "GRUR" (10/2006), Prof. Dr. Winfried Tilmann, lawyer, muses on how the patent-bureaucracy, still shocked by the failed software-patent directive, could guide the hand of the European Court of Justice (ECJ) so that, if EPLA would be brought into being and the ECJ would be in charge of deciding how the rules of European Patent Convention (EPC) should be interpreted, the ECJ would likely follow their doctrine.1
First he says that for EPLA to be brought into being three things need to be accomplished (and preferably should be done in one step):
- an EPC-conference must change the EPC so that not only states can join (Art. 166 EPC),
- the European Union must join EPC / EPLA,
- those memeber states (at least eight) interested in EPLA must press ahead by means of Closer Co-operation
Then he elaborates on the fact, that, as soon as the European Community would join EPLA, national courts could refer questions about how the EPC should be interpreted to the ECJ. The interpretation of the ECJ would be binding for all member states and could not be overruled by EU-directives. Now, he asks, how could "users and practitioners of the European patent system" still severely shocked by among others the failed software-patent directive "guide the hands of the ECJ"? The ECJ's interpretation likely would be bound by Implementing Regulations of the EPC.
"The means of changing the Implementing Regulations must appear to users and practitioners of the European Patent System, still shocked by the debate around the Biotech- and Computersoftware-directives, the securest means."
The details should be worked out by European Patent Office (EPO) experts and national judges, to which he attributes the highest competence in such matters.
Needless to say that politics, economics and civil society play no role in his remarks upon how to reach a common interpretation of the patenting-rules and thus on the scope of patentability and software-patents in Europe.