Digital Majority

Brussels, 12 May 2009 — The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention and won't be an EU institution. Those patent judges want to have the last word over European patent law."

Background

The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired by the now defunct European Patent Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software patents and substantive patent law. The centralised patent court won't be an EU institution.

The Court of Justice of the European Communities would only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, […] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community." The UPLS itself would not be a "institution of the Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.

On the other side of the Atlantic, specialized patent courts in the United States (CAFC) have watered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. The poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin drawing. The Supreme Court judges overturned the patent, heavily criticising the obviousness threshold of the specialized patent court: "This is gobbledygook. It really is, it's irrational. It's worse than meaningless."

Links

• Council: European And Community Patents Court Draft Agreement
• European Commission: Recommendation to the Council to authorise the Commission to open negotiations on a Unified Patent Litigation System
• European Commission: Next steps for creation of unified patent litigation system
• FFII EPLA WG: Hartmut Pilch's 2007 vision on EU-EPLA and software patents
• SSLUG: TBA -> EBA EPC 112!
• Forexpros: EU takes key step towards bloc-wide patent system
• FFII: Single EU patent law good for US giants, bad for small EU firms
• NoSoftwarePatents.com: Round 3
• Eupaco2: John Duffy: Optimal Centralization in Patent Institutions
• StopSoftwarePatents: "Council seeks to legalise software patents with the Community Patent" says French expert
• BMWI: Patente auf computerimplementierte Erfindungen
• FFII EPLA WG: The EPLA plan for software patents
• EuropeanVoice: Czechs call for unity on patent legislation
• Permanent link to this press release

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

Just a detail: the German Federal Court (aka Supreme Court, BGH) is always accessible to the parties of a nullity lawsuit (against an EPO-granted patent) or as a last instance in an appeal/complaint against granting/opposition decisions of the patent office. Unfortunately this hasn't been of great help, since decisions of this court are taken by a patent senate whose members share the convictions of the patent community and tend to slide along with its interests just as much as those of the Federal Patent Court, only slightly behind the EPO, which has been the daring innovator whenever goobledygook reasoning (such as that regarding program claims, second medical indication, absolute substance protection etc) was to be introduced. And in these EPO cases the Technical Boards of Appeal (TBAs) successfully denied recourse to the Enlarged Board of Appeal (EBA), claiming cheekily that there was no legal issue to be resolved. In the traditional German system this would not have been possible, and of course the hight courts would not have become gods, as the EPO judges have become, because, unlike today, there used to be a functioning system of legislative review and correction. What the European Commission is doing seems to be to remove even the last remaining elements of correctibility of the god-like decisions to be taken by a totally unaccountable judiciary. This is mind-boggling.

arebenti, your assessment of the situation is compatible to that of the two preceding postings, no contradiction.

It only starts getting awkward when you pose the question of how "we" can help to empower the Commission.

This is probably beyond "our" influence, and even if we could do effectively help to move the whole patent system into the sphere of regular EU lawmaking (co-decision) and build a patent system in analogy to the Community Trademark, the result might look somewhat less ugly, but even such a system would still have an effect of moving the de facto legislative power to the judiciary and of further entrenching software patents, and there would be practically no way for anyone outside the patent community to influence or correct undesirable developments.

We have in general a system where sovereignty has been moved away from the citizens to a jungle of international treaties that can only be navigated by a community of judges and law experts who, when they need to justify their lack of responsiveness to citizens and public interest, pretend to be bound by the law, but at other times, when the real power-holders want them to do something, turn out to be quite responsive.

In view of the EU elections, I wonder if Libertas has fully recognised this problem and has a sufficiently clear vision and willingness for conflict to be able to change anything about this increasingly unnavigatable situation.

Just today I read a response of Barroso to a Corriere journalist who tried to obtain a clear statement on how the EU wants to face the African migration pressure, and all he got was evasive rhetoric about the Geneva convention and announcements that the Commission will, contrary to Italy's requests, not convene a meeting about a EU-wide strategy on this issue. Barroso's talk was incoherent and showed clearly how the Commission deals with problems: by finding an international treaty (c.f. TRIPs) to hide behind.

Why should the attitude of the Commission officials be any different when it comes to less pressing issues such as the Community patent?