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.
The EPO mulls this over, on its intranet:
This means that the competence to set up arrangements relating to the settlement of disputes relating to "European" patents has not only shifted from the Member States to "Brussels" but also it has shifted from Munich to Brussels.
Let's think about this for a second… up until now, software patents have come into existence because the European Patent Office, in Munich, has systematically distorted the law until all the barriers that prevented the patenting of software and business methods were turned into vapour.
In 2005, the Community, represented mainly by the European Parliament, decided that software patents were such a controversial and dangerous issue that it scrapped the infamous Software Patent Directive, in a hail of civil action that has gone down in history as one of the great defeats of commercial lobbying by civil activists.
In 2007, the German presidency, prompted by the large German software "innovators" Siemens and SAP, is going for broke to promote the EPO's vision of patent heaven, called EPLA, in which national high courts lose their jurisdiction over patents, and the EPO's twisted and unethical patent regime becomes the European standard, thus unleashing the Pandora's box of EPO software patents on the European IT sector.
And now, the European Parliament, promoted by a resolution last year that called for a legal opinion on the legality of EPLA, has decided that patent policy cannot any longer be decided in Munich but belongs to Brussels.
EPLA is absolutely vital to the patent industry's plans for software patents. I expect the EP's legal opinion to be challenged and dismissed and treated as irrelevant. The German presidency may well push for "closer cooperation" in which a small set of states sign a treaty by themselves. So could a bunch of member states sign EPLA, in a midnight deplomatic conference, without going through all the hassle of getting the Community ready to sign? Well, they might try.
But as someone pointed out:
If Germany wants to steamroller EPLA through the Council of the EU, just any Member State, the European Parliament, or the Commission may ask the Court of Justice for a legal opinion. It is clear that France doesn't like EPLA. Neither does Luxembourg, because Luxembourg was promised the Community Patent Court, and it is not at all sure whether EPLA Court would also be in Luxembourg. The European Parliament may also request a legal opinion from the CJEC on EPLA, and if the CJEC confirms the legal opinion of the European Parliament the EPLA supporters are in big trouble.
So, EPLA may well come before the Court of Justice.