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Community Patent undermines European Constitution


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The Community patent aims at making patents cheaper and more easily available throughout the European Community. This will lead to many more patents. Patents may stimulate innovation, on the other hand patents are exclusive rights that forbid independent rediscovery. Patents impede competition, follow-up innovation (by others) and interoperability, lead to high transaction costs and higher prices. Patents may be a good economic policy instrument, but only in a controlled situation. Unfortunately, the European patent system lacks checks and balances. The European Patent Office makes money granting patents and there is no independent appeal possible against its Technical Board of Appeal decisions.

The Community patent does not solve these problems, in fact makes them worse. The Community patent comes with accession of the European Community to the European Patent Convention. This accession creates fundamental problems.

The Community out-sources the granting of Community patents, giving an unaccountable non-Community organisation carte blanche.

The Community patent creates a Community software patent

The EPC is interpreted by the EPO’s Boards of Appeal which have over time adapted their interpretation of the EPC so that [http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm computer programs and business methods are in fact patentable]. The pervasive introduction of software into patent law is not a “technical” legal decision but a policy change definitively outside the competence of any court, requiring proper treatment as a policy change.

The software patents directive was an attempt to codify this case law, it failed to gain political approval. After the almost unanimous rejection of the software patents directive, the EPO went on granting software patents. The problem is that the EPO is not a Community organisation. The European Community can not stop the EPO.

The Community patent fails to bring the EPO under Community control. Instead of taking measures, the EPO will be awarded the granting of Community patents. The EPO will grant software patents, and likewise, Community software patents. There will be no appeal possible against EPO’s Boards of Appeal decisions.

Community law by a non-Community organisation

Under the Community patents proposal the European Community will accede to the EPC which will become Community law. As a result subsequent changes of the EPC will also be Community law. The EPC can not only be changed by a diplomatic conference, the European Patent Organisation’s Administrative Council can change the “Implementing Regulations”, as well as Parts II to VIII and Part X of the European Patent Convention, thereby taking on the role of legislator.

The constituting treaties of the European Community, with its precise rules on making Community laws, will be bypassed. The European Parliament will be bypassed. We will have Community law without democratic control. Accession to the EPC undermines the European Community’s constituting treaties.

EU accession to the EPC needs assent from EP

Community titles created by an unaccountable non-Community organisation

Community patents will be Community titles (Council text, consideration 7, page 7), issued by a non-Community organisation. There will be no appeal possible against granting these Community titles before a Community court (Commission proposal 2.4.5.2 page 15), (or any other independent court). The Community will have no influence at all on granting these Community titles. From a Community perspective, these titles are unaccountable.

These Community titles will be granted by the European Patent Organisation which as we have shown is essentially a state among the states, with its own legislature, bureaucracy and courts that are neither independent nor democratically accountable. Further still the EPO generates income granting patents. Out-sourcing the granting of patents in this manner means the Community loses the vital possiblity to create checks and balances.

The Community out-sources the granting of Community titles, giving an unaccountable non-Community organisation carte blanche.

No appeal against EPO decisions at an independent court

It will not be possible to appeal against EPO decisions at an independent court, a violation of the European Convention on Human Rights. The trias politica is the basis of our constitutional states, a principle which unfortunately has not reached the European patent system. Moreover the proposed EPO reform is insufficient for that matter.

The Community Patent proposal as it stands makes the EPO's Board of Appeal the highest authority on the granting practice. The Community Patent Court European Court of Justice will be the highest court in infringement invalidity cases. As a result two separate legal systems are created, allowing different interpretations of the European Patent Convention.

If you give one organisation the right to grant patents, and another the right to invalidate them, and there is no hierarchy, the result is arguably pure sophistry. You make money and then say: sorry, the title we sold you is worthless.

Of course the title can turn out worthless because prior art is found, and while that is part of the game particularly with reference to software patents, different interpretations of the EPC should not be made possible by a failing set up.

EPO's practice will be the community patent's basis, including its objected, undemocratic and unaccountable practice of granting software patents. This uncontrolled case law, together with 'cheaper' and 'easier' application and long retroactive period is a pernicious combination.

For the Netherlands and more countries, the Community Patent will introduce retroactive liability. The Community Patent will make it profitable to apply for broad, vague and trivial patents, and then send out notices after some years. Since going to court will often be too expensive, !SMEs will have to pay. The result: the Community Patent will make legal extortion profitable. If Europe is to steer clear of the mistakes of the US and develop its burgeoning knowledge economy and !SMEs this is a turning point we have to steer clear of.

(Belgium already has retroactive liability, but for a shorter period. The retroactive period will be longer than that in the US. It is ironic that abuse and extortion have led to a call for reform in the US, while Europe is in danger of going much too far on this point.)

See Vrijschrift letter on Community Patent

Compat proposal needs to be changed

The present text has fundamental flaws.

At the moment the community patent is stuck on the language problem, providing time to adapt the proposal. Since unanimity is needed in the European Council, any EU country can exact changes by rejecting the present text.

Solution

In order not to undermine the Constitution, and to prevent Community law written by a non-Community organisation, the EU Community must take over the European Patent Organisation's legislative role.

In order to prevent a Community software patent, the case law on software patents is excluded on accession to the European Patent Convention. A Community law on software patents is made before accession to the EPC.

In order to prevent Community titles by a non-Community organisation, to prevent out-sourcing of patent policy, the European Patent Office is made a Community Agency.

In order to prevent separate legal systems with its own interpretations of the European Patent Convention, the European Court of Justice is made the highest court on all patent cases, granting, infringement and invalidity of Community patents.

In order to prevent making legal extortion profitable, there will be no retroactive liability.

A separate European Community innovation office should coordinate various innovation policy measures, patent policy is just one of the many instruments (and perhaps not the best one) to stimulate innovation.

Procedure

This directive is under the Consultation procedure. Under this process the European Parliament can only advise, while on the other hand unanimity is needed in the Council. In 2004 The Council did not reach a common position because it was stuck on the language problem. After it reaches a common position it will go back to the European Parliament for reconsultation, since the text will have changed considerably. (One commentator, the Dutch state secretary Karien van Gennip, said she doesn't expect any progress before the French elections (2007)).

Documents

Proposal Commission

European Parliament, juri

European Parliament, plenary

(In the links above, you can change "en" once or twice with your national code, like "de" or "fr" to get the translation.)

Latest Council version

(Full text, there have been some discussions afterwards, check link below for updates)

Overview Council documents

Community Patent Court proposals

McCreevy answer to question of Tom Wise (MEP)

Belgian analysis of Community patent effect on European patents

Print version FFII text on accession to the EPC


An other attempt to harmonize European patent law: the European Patent Litigation Agreement


Bolkestein on ComPat in 2001: http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/01/597&format=HTML&aged=1&language=EN&guiLanguage=en

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