Commissioner McCreevy 'not able to act' against EPO practice
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In reply to a question from a member of the European Parliament, the Commissioner refused to help to solve the European software patent problems created by the EPO. He mentioned that a regulatory act falling in Community acquis could enable the Commission to act as it did before. Here only 'technical' problems were at stake. The Commissioner shows unwillingness to solve the problems of European software development creating by the EPO interpretation of the EPC and to act according to the will expressed by the historical EU-Parliament decision.
The Question
E-3015/05EN Answer given by Mr McCreevy on behalf of the Commission (4.10.2005)
The European Patent Convention (Article 52 EPC) remains the applicable legal framework in relation to computer programmes. The European Patent Office (EPO) applies and interprets this text when it grants the patents.
The EPC provides several legal mechanisms which enable third parties to monitor the procedure and allow decisions taken by the EPO to be challenged. The EPC makes the following procedures available:
- inspection by third parties of pending applications
- observations by third parties on pending applications
- opposition by third parties to granted patents
- appeals by any party adversely affected by an EPO decision in grant and opposition proceedings.
Furthermore, after these procedures have been exhausted actions for revocation of European patents may be filed in national courts.
The EPO boards of appeal, who are completely independent in their decision-making, have been assigned the duty of reviewing the decisions of the EPO in grant and opposition proceedings, thereby interpreting the EPC in cases where disputes arise. Neither the European Court of Justice nor the Commission are competent to interpret the provisions of the EPC. The Commission, therefore, cannot judge whether the award of the patents mentioned by the Honourable Member is compatible with Article 52 of the EPC.
The Commission is entitled to oppose a decision of the EPO within the statutory time limits. However, its competence is limited to matters falling within the Community acquis. Therefore, it is not able to act where no such acquis exists, e.g. in the area of computer-implemented inventions where, following the rejection by Parliament of the Commission's proposal for a Directive on Computer-Implemented Inventions (vote of 6 July 2005), there are currently no specific Community legal texts in force which are relevant to this issue. The case of the computer implemented inventions is different from that of the areas covered by the Directive 98/44/EC of the Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions[1], in which case the EPO has inserted the provisions of the Directive into the Convention by way of an implementing regulation.
Parties to opposition proceedings at the EPO are not required to have any economic or legal interest in the patent: any European citizen or any entity with legal personality can file an opposition to a granted patent.
The Commission does not consider it necessary to contact the EPO with regard to the patents that this body has granted, to which the Honourable Member refers. In the case of the EP0695351 patent (biotechnology), moral and ethical issues were at stake. However, in the case of computer implemented inventions, the issues are purely technical and the Commission does not therefore intend to intervene. The Commission has nevertheless forwarded to the EPO the concerns of the Honourable Member regarding the patents in question.
In recent years, the Commission has not expressed concerns about any other patents granted by the EPO.
