LASP

MEPs stupid...EPLA is a good step claim patent attorneys....make your mind up..

Here is my post on the IPKat in response to an earlier posting today:

Dear IPKat

I refer to your post today regarding the European Patent Litigation Agreement.

"Some MEPs have since tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic. Respected UK Patent Attorney Vicki Salmon, on behalf of CIPA, immediately responded:

"Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward. ... "

The EPLA would enable a single European Patent Court to be created, concerning which Vicki said:

"We in the Institute are in favour of such a move provided, of course, the details are practical and do not result in an arrangement that is too expensive".

Although he is a firm believer in democracy, the IPKat sometimes despairs of its ability to address detailed issues such as patent law. If even Members of the European Parliament can't grasp the issues clearly, what hope is there that the vast electorate of the European Union will be sufficiently well-informed to give them a mandate for change? Merpel adds, the MEPs shouldn't be allowed to interfere with the delicate mechanisms of patent law if they can't even decide to ditch either Strasbourg or Brussels and make do with just one legislative base."

On this post I would make the following comments in the hope of trying to present a balanced debate for IPKat readers. The statement that CIPA considers the EPLA would, to quote, 'be a sensible step forward' has to be considered having regard to the position of the CIPA and the fact it represents a vested interest group. No doubt, it would represent 'a step forward' for the CIPA, but although it may come as a surprise to some, patent policy should not be governed by whether something is a step forward for patent attorneys. Furthermore, there are more fundamental considerations as to whether the EPLA is a 'step forward' then simply whether it is: a) practical; and (b) cost effective. For example, is the EPLA the 'appropriate' structure with which to introduce a single patent court in Europe and what will be the effect of the EPLA on the development of substantive patent law?

I strongly disagree with the presentation of MEPs as individuals who are unable to grasp the issues at stake with patent reform. As was shown with the story of the failed Software Patents Directive there is a good understanding amongst many MEPs of the problems with the current patent system in the EU and the proposals put forward by the commission and others to reform the patent system in the EU. If we value democracy, we must accept that laws should be made on the basis of what is in the 'public interest' by those who are directly accountable to the electorate. Here, there are no short-cuts.

There are already significant constitutional issues with the role of the European Patent Office in the existing system adopted by signatories to the European Patent Convention. A number of these issues were raised by MEPs last year and, ironically, the EU Commission itself has expressed concerns about the conduct of the EPO and its active 'policy' role. The constitutional issues stem from the fact that the EPO is not a democratically accountable institution in any modern sense of the word, yet is responsible for granting patents which have an impact on the citizens of signatory states. At present it is an administrative office which also, in granting patents, through the EPO and the Board of Appeals of the EPO, interprets the European Patent Convention. In carrying out this latter function it has adopted an extremely broad notion of 'technical effects' resulting in a de facto extension of patentable subject matter and the granting of more patents. If the CIPA is not convinced by the intellectual ability of MEPs, it may be convinced by the intellectual ability of an English silk, Prescott QC, who stated in his judgment in the case of CFPH last year that:

"[d]espite the prohibition on granting patents for computer programs as such….the EPO has granted more than 40,000 of them"

The EPO has taken upon itself to make decisions which 'potentially' result in the unconstitutional extension of patentable subject matter. As an institution which is not within the EU framework of institutions and which is not democratically accountable in any modern sense of the word, it can do this without sanction. Furthermore, in doing so, it is creating a body of 'potential' jurisprudence emanating from a body which, due its dual function, cannot claim sufficient independence for transparent and ethical law making - it is the body which makes money from granting patents.

I say 'potentially' above because, in the current EPC structure, it is the national courts of the members states who ultimately interpret the EPC and, as Precott QC succinctly expressed last year, the EPO's decisions are not binding in any way on the national courts. Therefore, where we are today, the true impact of the unconstitutional extension of the patent system by the EPO in Europe is not being felt. HOWEVER, with the EPLA, in its current form, there is a strong probability that the de facto extension of patentable subject matter by the EPO could become the reference material for the new single Patent Court outlined in the EPLA.

An objective review of the current problems of the EPC/EPO model leads one to query the CIPA line on the EPLA. Any individual examining the EPLA who is interested in democratic law making should be concerned.

1) The EPLA is a system which is outside of the control of the EU institutions and the democratically elected parliament. It would result in a single court for disputes over the validity of patents issued in the signatory states which is not accountable to an EU institution. In other words, this would create a further institution which has similar issues of unaccountability as the EPO.

2) One of the major burdens of the patent system on competition is the cost of defending (even spurious claims) and litigating patent claims. Therefore, any new litigation agreement between member states has to provide clear cost benefits to claimants and defendants. We have seen no objective and independent impact assessment carried out showing that, for industry as a whole (and not just large companies), a single court would offer cost savings.

3) The idea that a central patent court is beneficial for the patent system as a whole needs further consideration. Supporters of the EPLA try and make comparisons with the central federal patent court in the US. However, a number of US academics are currently questioning the benefits of having one centralised court in the US. More thought needs to be had on such an important issue and this discussion really should take place within the current EU legislative framework which at least has a modicum of democratic control. The issue of a central court needs to fully debated in the context of the Community Patent debate.

4) The current EPLA proposal does not guarantee an independent judiciary. This failure is absolutely critical. Any independent court needs to be staffed by legally qualified members who have sufficient independence from any body which has an economic interest in the granting, preparation of or litigation of patents. This, for anyone who has a remote interest in democracy is common sense but this factor has been overlooked by the supporters of the EPLA. The EPLA proposals, as drafted, would allow for members of the EPO to become members of the proposed single court. There has to be a conflict of interest here. There must be a clear separation of powers between those responsible for the administration of the system and those responsible for determining questions of validity. Furthermore, the language of the EPLA does not go far enough to exclude from the membership of the proposed single patent court others who might have or have had an economic interest in a body interested in the granting, preparation of or litigation of patents.

5) Without proper controls on the selection of members of a single court, there is a real danger that instead of democratically elected institutions such as the European Parliament (which is accountable to the public and hence the public interest) determining what should and should not be patentable, an undemocratic, non-EU and potentially non-independent court could decide the direction of future patent policy in Europe. If the past record of the EPO is anything to go by, where there is a similar conflict of interest and lack of accountability issues, adopting the EPLA could be extremely detrimental to European growth and innovation.

In summary, although at first glance the EPLA appears an attractive 'stop-gap' solution to the currently stalled Community Patent, the current proposals on the EPLA lack the basic tenants of what makes a transparent and democratic law making system. Although there may be a motion calling for the scrapping of the EPLA, there are also motions which call for more time and consideration to be had on the EPLA and for some of the concerns of the existing proposals on the EPLA to be further debated. This is not democracy in 'meltdown' but democracy 'in action'.

Cristian

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