EPO official Wim Van der Eijk defends EPLA proposal

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2006-07-13, Belgium: Today Wim Van der Eijk of the European Patent Office (EPO) defends EPO's European Patent Litigation Agreement (EPLA) initiative. Van der Eijk indicated that the overall goal was international patent harmonisation towards the weak US standards by calling EPO pratice 'restrictive'. The hidden EPO aims is to overcome the more restrictive European Patent Convention and permit software patenting. The EPO already grants US style software patents but they often cannot get enforced on the national level because the EPO case law regarding the European Patent Convention (EPC) is not accepted. EPLA would change that. Van der Eijk was interviews by Radio 1, the public news radio of the Dutch speaking community of Belgium. The interview was broadcasted between 5pm and 6pm.

English transcription of excerpts

Europe "more restrictive" than the US

Van der Eijk: "If one would examine the numbers of patents that are granted in the US for inventions in the information technology atmosphere, and in Europe, you might think: "We are running behind." It is important to recognise that the patent granting practice in Europe is a different one from the one in the US. In Europe, we are more restrictive. There are a number of things you can get protection for in the US, but not in Europe."

Interviewer asks for explanaition.

Van der Eijk: "In the US, you can for example patent a business method, while in Europe, there is always the condition that the invention must be technical."

Interpretation

Van der Eijk talks about substantive rules here: "What shall be subject to patent protection?" This question is answered by substantive legislation such as the EPC and national patent laws. Procedural changes like EPLA are seen as means to become policy maker and change substantive rules i.e. introduce watertight software and business method patents like in the US. As the EPO is bent to circumvent the EPC, its governing treaty, it has to remove the traditional limitations such as the requirement of technicity. In the past the EPO undermined these EPC rules by dubious case legal schemes such as a "further technical effect", the "as such"-clause or the introduction of computer program claims. Changes of substantive rules do not lie in the competence of the EPO administration but are subject of the contract parties of the EPC. The EPO holds an economic incentive for a more permissive interpretation than the responsible legislator. A clear indication is the continuous granting of software patents despite growing criticism by democratic bodies. FFII proposed 10 core clarifications aimed at reenforcing sound interpretation of the EPC. The claim that EPO was more 'restrictive' does not hold in the lights of its abusive granting pratice.

An argument based on quantity rather than quality would leads to an appraisal of the US system. This would be understood from a patent office perspective in the lights of being a "patent granting profit center". But it should also clearly demonstrate why patent offices or the patent community can not govern patent policy on their own. The lack of a proper economic foundation of patent policy and inherent incentives of the patent community result in patent inflation like we experience it in the US. Patent Offices do not bear the welfare loss which is created by its market intervention and can not balance patent policy with competition objectives. Van der Eijk here words the EPO's intentions in diplomatic and thus ambigitious terms.

Further the EPO offical compares European patenting with US patenting. He knows that patent law adheres to the teritorial principle. When the US had a more permissive granting scheme, these rules apply for the US market only. And if European member states had a less permissive granting scheme, it would apply to their market, regardless the origin of the inventor. So it is all about single market rules, not about transnational competition of territorial markets or national inventors. Unlike uninitiated listeners believe there are no disadvantage for Europeans. That is why he stresses the differences of both systems and debunks the comparison. In the context of the interview there is however no doubt that he sees the advantages of a more premissive patent regime. The hidden EPO agenda has to be understood in the context of worldwide/trilateral patent law harmonisation.

Enforcing EPO interpretation of the EPC in the member states

interviewer: "Now since 1973, there is of course a (European) patent office as it is called, right, and a lot of patents have been deposited there, but are they also adequately protected in the different EU member states?"

Van der Eijk: "If we grant a patent, the patent holder can claim protection in by now 31 countries. You then have to make it valid on a national level, you often have to file a translation of the patent. After that has happened, the degree of protection depends on the quality of local jurisdiction, and that varies. Germany has a lot of experience. There are also countries where there is a patent dispute maybe once or twice a year."

Interpretation

"Quality of local jurisdiction" regarding the "degree of protection" means the willingness of national courts to agree with the permissive EPO line. It raises concerns that an EPO official criticises national court decision making.

Damn Francophonie

interviewer: "And do you feel a kind of political goodwil has sprung up the last few years, that such a simplification of the system could happen?"

Van der Eijk: "The tilting point is actually France. France has of course got a big interest, also industrially in the patent system, and is on the other hand side also very involved with francophonie (the french speaking community worldwide --red.), and there you see the conflict at this moment playing up very clearly. I think the Commission will now mostly think about the question "Are we going to try for one last time to get to the community patent, or do we keep that for later, when the political climate has gotten somewhat better, and are we going to work in the short term towards the London protocol, to support that politically, are we going to try and get the EPLA started, the European patent court?""

Interpretation

The "political climate" means democratic will and influence by non-members of the patent community. EPLA is put forward by the EPO as an alternative to the Community Patent effort by the Commission. In fact the struggle is of institutional nature. As FFII analysed the EPLA will shift power to the EPO. The EPO only accepts a Community Patent when its power is preserved. EU's Council of minister working groups on patents are within the influence sphere of the EPO and block any EU attempt which weakens the role of the EPO or the influence of the patent community. The political purpose of a European Patent Court under the influence of the EPO will be to confirm EPO case law (which amended the EPC in a way that software and business method patents are granted) and enforce these EPO revisions on the national level.

Background

In January 2006 Hartmut Pilch answered a question by the press about the EPLA and Community patent process: Does this restart the debate over CII patents? Why or why not?

"It restarts the push for software patents, without a debate. But there wasn't much of a debate during the past two pushes either. The term "CII" was a propaganda term, designed to avoid a debate. Anyone who uses this term implicitely agrees that computer programs, when described in the language of patent claims, can qualify as "inventions" under Art 52 of the European Patent Convention (EPC) and are therefore patentable subject matter (which said article says they are not).

In 1999-2000, there was a debate. The Commission and EPO proposed that software and business method patents are needed in Europe, and for that reason the law (European Patent Convention) must be changed. The proponents lost the debate. That was round 1 of the European software patent struggle.

Then came round 2 with the term "CII" in the title of a directive proposal. Anyone who quoted the title had to agree to the underlying assumption. That way they thought they could win without a debate, but they failed again.

Now comes round 3. It started in July 2005, when the proponents of software patentability agreed to drop the directive and push for the Community Patent instead. ...Instead of directly imposing software patentability, the proposal is now to remove the patent system even further from legislative review by any democratically elected parliament. Thus in effect legislative power is handed over to a few top judges and to the circle of administrative officials that is running the European Patent Office and the EU Council's patent policy working party. There are even moves to explicitly make EPO case law binding on the new EU patent institutions. Of course all this goes without mentioning the word "software" or "computer", but the underlying issue is clearly understood.

The Community Patent has failed for 25 years due to resistance from many quarters within the patent lobby itself. If now suddenly this resistance can be overcome, there isn't much need to explain what is the driving force that is overcoming it."