EU patents lumber on

In advance of his address the Commissioner was flying kites, telling an informal meeting of economics minister in Helsinki in September, “It is D-day for Europe when it comes to intellectual property protection.”

The current Community Patent deal as proposed in 2003 is dead. Rather than waiting for it to be redrafted McCreevy wants to use the next year to pursue the European Patent Litigation Agreement (EPLA) under which a single court would be established in Munich, home of the European Patent Office, to oversee patent law.

MEPs are due to debate and vote on ‘Future Actions in the Field of Patents’ on October 11 – 12, but in advance of his formal address to the European Parliament in Strasbourg 28 September, left wing and green MEPs had reacted to McCreevy’s Helsinki speech and tabled a motion to scrap his EPLA plan.

The European Socialists Group says that SMEs who become embroiled in patents litigation could face bills of between Euros 97,000 and Euros 415,000 if they have to take a patents case to EPLA.

The Socialists’ motion, tabled by Michel Rocard, former French Prime Minister, and Maria Berger, the Austrian social democrat leader, says that as a non-EU body EPLA would be undemocratic and undermine judicial independence.

“It is unacceptable to create a non-EU legal system complete with a non-EU court to deal with patent legislation,” said Rocard. “Only an EU framework can produce the conditions that we need for effective, democratic control over Europe’s patent law at an international level.”

McCreevy’s push for a centralised patents court comes just a year after the European Parliament rejected patents on software, and some MEPs are arguing that EPLA is a way of sneaking software patents through the back door.

They cite cases where the European Patent Office (EPO) has granted patents on software, even though they are not allowed in national jurisdictions, and say that a central court would be likely to uphold such patents. For example, in a ruling handed down on 23 February this year EPO’s Board of Appeals upheld a patent on data formats.

“EPLA is about much more than software patents,” said Italian MEP Umberto Guidoni of the GUE/NGL Group (European United Left/Nordic Green Left). “Still software patents are one of the key motivations behind it. The Parliament made it clear last year that we largely disagree with the EPO’s granting practice in certain areas. That’s why we don’t want a new court that would be controlled basically by the same people as the EPO.”

McCreevy made a personal commitment to move the patents juggernaut forward at at a meeting 12 July in Brussels called to discuss the opinions proffered in response to the public consultation.

The 2,515 responses displayed widespread support for a Community patent, but not in the shape of the 2003 proposal. McCreevy promised one, “big, last push” on the Community patent, but added, “I still have to decide when the time is right.” He said also that that there would be no move to harmonise patent law beyond the existing European Patent Convention, and no new initiative on software patenting.

To the elite gathering of economics ministers in Helsinki he said, “What industry wants is a one stop shop. People don’t care how this is achieved. But they want action.”