Software Patents: GRUR: how to guide European Court of Justice to SW-Pats

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GRUR: how to guide European Court of Justice to SW-Pats

andreasr 1163596918|%e %b %Y, %H:%M %Z|agohover

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.

Last edited on 1163685461|%e %b %Y, %H:%M %Z|agohover By andreasr + Show more

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andreasr 1163684777|%e %b %Y, %H:%M %Z|agohover

Just to further clarify the implications of his propostion:

the Implementing Regulations can be changed by the Administrative Council of the EPO (Art. 33 EPC),
the Administrative Council is a body that consists solely of members of the patent system, usually from the national patent offices,
so only the patent-bureaucrats (confound this word!) would have a saying in this and, once or even before the EC has joined EPC/EPLA, would arrange everything among themselves.

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Re: GRUR: how to guide European Court of Justice to SW-Pats

pieterh 1163700913|%e %b %Y, %H:%M %Z|agohover

Very interesting.

Portfolio

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Re: GRUR: how to guide European Court of Justice to SW-Pats

Anonymous (212.190.72.x) 1164187910|%e %b %Y, %H:%M %Z|agohover

Does the Administrative committee needs 75% majority to change the 'Implementing Regulations'?

Is it linked to the EPC 2000 revision which gives more power to the Administrative Committee? I heard that they don't need a diplomatic conference to change some interpretation of the EPC.

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Re: GRUR: how to guide European Court of Justice to SW-Pats

andreasr 1164270832|%e %b %Y, %H:%M %Z|agohover

Does the Administrative committee needs 75% majority to change the 'Implementing Regulations'?

According to Art. 35 EPC, yes.

Is it linked to the EPC 2000 revision which gives more power to the Administrative Committee?

As far as changing Implementing Regulations is concerned, no. They are allowed to change those before EPC 2000. But with EPC 2000 they will have the power to change Art. 166 EPC so it will be easier to let the EU join.

And there is more bad news: when EPC 2000 enters into force in 2007, and the Administrative Council has the power to change most of the EPC (see Art. 33 1b), EPC 2000 (PDF)), it can also change Art. 52 which says e.g. programs for computers are not patentable! They will need unanimous assent (abstentions not included, see Art 35 (3) EPC 2000), but they do not need a diplomatic conference any longer!

So I guess from Dec. 2007 on the Administrative Council of patent bureaucrats could simply claim "TRIPS makes it necessary that programs for computers are patentable, so let's gonna drop that darned no-software-patent paragraph. In case this catches the eye of those obnoxious no-software-patents dudes in time and they raise hell, those of you guys, who are told by your parliaments not to agree, just abstain."
This gives me the creeps.

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