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European Commissionar Charles McCreevy answers question by MEP Thomas Wise on community patents and software patents


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In an answer to a question by the member of the European Parliament Thomas Wise, commissionar Charles McCreevy points out that the adoption of a Community patent would not alter the substantive rules governing patentability which are set out in the European Patent Convention (EPC). The Community would accede to the European Patent Convention which would have as a consequence that the latter becomes Community law. According to McCreevy the European Court of Justice has the last word in interpreting Community law. The FFII comments that there is no appeal possible against European Patent Office Technical Board of Appeal decisions, the ECJ will not have the last word concerning EPO decisions. We will have Community law written by an other organisation, without democratic control by the European Parliament. With the community patent, the Community will incorporate the EPO practice on software patents, which was rejected by the EP.

Question by MEP Thomas Wise

WRITTEN QUESTION E-4062/05 by Thomas Wise (IND/DEM) to the Commission (07.11.2005)

Subject: Community patent regulation

In proposing a 'Community patent' regulation, the EU Commission states (see COM(2000) 412 final, 2000/0177, page 8) that, 'Similarly, the Office ![EPO] will apply to the Community patent ![regulation] the case law which it has developed for the European Patent, to the extent that the rules in the Regulation and the !Patent Convention are identical.'

However, rules based on this case law would not, in general, be agreeable by Parliament because (a) the said case law recognises the legitimacy of software patents, and (b) Parliament has forthrightly refused legitimacy to software patents (Strasbourg, July 2005). It may be that the proviso ('to the extent that the rules in the Regulation and the Convention are identical') avoids this disagreement -because the Convention also outlaws software-patents- but this is not absolutely clear.

Therefore, will the Commission now undertake to make clear that the 'Community patent' regulation would not attempt -through the adoption of the EPO's present, "case-law" - to extend patentability to software, especially in view of the vote in the July 2005 part-session in Strasbourg?

I OJ C 337, 28.11.2000, p. 278. 585754.EN PE 365.371 2. E-4062/05EN

Answer given by Mr McCreevy on behalf of the Commission

Answer given by Mr McCreevy on behalf of the Commission

(23.12.2005)

In reply to the Honourable Member's question, the Commission would like to point out that the adoption of a Community patent would not alter the substantive rules governing patentability which are set out in the European Patent Convention (EPC). The Community Patent Regulation would apply to patents designating the Community and granted by the European Patent Office under the provisions of the EPC. The Community would accede to the EPC which would have as a consequence that the latter becomes Community law. Thus, Community patents would be subject to the ultimate jurisdiction of the European Court of Justice (ECJ).

Article 52 of the EPC excludes "computer programmes as such" from patentability. This exclusion would also apply to the Community patent, as the Honourable Member rightly points out. Therefore, the adoption of the Community patent would only reinforce the means to ensure that this or other exclusion from patentability is interpreted in a manner that patenting of pure software (or other excluded subject matter) is not permitted, for the ECJ has the last word in interpreting Community law, which is not the case under the EPC. Furthermore, the uniform interpretation by the ECJ will allow making sure that only inventions which meet all the conditions laid down in the EPC, namely: novelty, non obviousness and inventive step, and industrial applicability are eligible for a patent, irrespective of whether or not they are implemented by means of a computer programme. The inventive step requires the invention to make a technical contribution.

These conditions ensure that the barrier to software patentability is maintained. Due to these requirements, many inventions currently patentable in the United States will continue not to be patentable in Europe.

In the light of the above, it remains the Commission's view that the adoption of the proposed Regulation on a Community patent would not extend patentability to software; should there be instances where a patent has been granted in error to a computer programme, existing procedures already provide adequate safeguards and the new jurisdiction granted to the ECJ once the Community Patent Regulation is adopted will only improve those safeguards.

Comment by Ante Wessels

The European Court of Justice has the last word. But there is no appeal possible against European Patent Office Technical Board of Appeal decisions (Commission proposal 2.4.5.2 page 15). The ECJ will not have the last word on EPO decisions.

Why would the Community accede to a Convention if it can have no real influence? Just to give away its influence? We will have Community law written by an other organisation. We will have Community law without democratic control. The European Parliament will have no say in it at all.

The EPO is a state among the states, and its fruits will be Community law. This is a totally unacceptable situation. We will have unaccountable Community law.

While the European Parliament rejected almost unanimously the software patents directive, which would legalise the EPO case law on software patents, the EPO will be able to go ahead with granting these patents, and now with a rubber stamp of the Community. A gross insult to the democratic principles of the Community.

The ECJ will only have the last word in infringement and invalidity cases. Whether the EPO will follow the ECJ interpretation in its granting practice, is up to the EPO.

With the community patent, the Community will incorporate the EPO practice on software patents, which was rejected by the European Parliament.

The European Union will accede to an organisation with horrible case law, no independent courts, no democracy.

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