PSE draft resolution on the European patent system
The PSE made a draft resolution on the European patent system.
Comment Ante Wessels
I would like to highlight two points:
1
- "6. Believes that only as long as the Community patent does not seem achievable, the improvement of the existing framework of the European Patent Convention, especially the litigation and linguistic arrangements is to be considered as a transitional approach"
A transitional approach will not work. Establishing a court is very expensive. Once the EPLA court is established, it will never go away. Why not create a good permanent solution immediately? It is possible to create the Community Patent Court (CPC) and give it the jurisdiction the EPLA court would have.
EPLA court: Basically, the same people will control the European Patent Office, will appoint the European Patent Office's Boards of Appeal members and the European Patent Court judges. An enormous concentration of power, while the governance model is a political vacuum. A patent incrowd that does not represent the general public will control the European patent system. Members of the European Patent Office's internal Boards of Appeal and members of national patent offices' boards can be a judge at the European Patent Court at the same time! An unheard of mixture of executive and judiciary. Board of Appeal members have been engaged in enlarging the scope of patent law, which was outside their competence. The software patents the European Patent Office granted (outside its competence) will be made enforceable this way. The reservoir of software patents will be unleashed. EPLA has more deficiencies, for instance, the draft contains nothing on compulsory licenses. And in the U.S. big software vendors demand changes in the way damages are awarded, since things clearly run out of hand. Europe has a chance to repair the way damages are awarded before European scale litigation is created, before things will run out of hand here.
- Community Patent Court: Quality and independence are much better guaranteed with the CPC. ECJ judges can not hold another office (art 4 ECJ Statute.). The way CPC court judges are appointed compares favorable with the EPLA court (art 2 and 3 CPC draft).
http://europa.eu.int/cj/hu/instit/txtdocfr/txtsenvigueur/statut.pdf http://register.consilium.eu.int/pdf/en/04/st05/st05189.en04.pdf
But should we want European scale patent litigation? One stop litigation is profitable for the right holders. We will see U.S. style litigation in Europe. Europe is at the crossroads. We can go the same way as the U.S, or call it a narrow escape. U.S. style litigation will benefit litigators, not innovators.
In our opinion, accession to the EPLA needs assent EP. By asking for accession the EP throws away much of its influence.
More: http://wiki.ffii.org/EplaEn
2
- "8. Considers it advantageous that the European Community becomes part of the European Patent Convention, and in consequence of the European Patent Litigation Agreement and the London Agreement;"
After the Community patent draft became ready, Europe became more aware of the problems the patent system has. Care has to be taken the Community patent does not make these problems bigger. For instance the way damages are awarded (see above) deserves attention.
An essential part of the Community patent is accession to the European Patent Convention (EPC). If assent EP is needed for accession, the EP has a strong position. If the EP now calls for accession anyway, it throws away much of its position.
If the EP wants to maintain its position, it should not "blindly" call for accession to the EPC.
Accession to the European Patent Convention (EPC) does not automatically give the EP more influence on patent policy. In fact, it may turn out the other way. The EPC can not only be changed by a diplomatic conference, the European Patent Organisations 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 Communitys constituting treaties.
The EPO is not in line with Parliament. The EP needs to maintain as much influence as possible, and not give it away.
In our opinion, accession to the EPC needs assent EP too. Community patent related accession issues are described here.
For comments on the European Patent Litigation Agreement, see above (1).
Regarding languages: It would be a good principle if people have the right to defend themselves in their own language. Already Small and Medium sized companies go broke over litigation costs.
Using the language used at the European Patent Office would be Western-Europe centered.
