Calls For Stronger European IP System At Commission Hearing

BRUSSELS – A majority of the 400 selected participants at a recent European Commission hearing on the future patent policy in Europe called for more centralisation – in the form of a single patent system or a common litigation system – but not at any cost.

A number of the speakers, whose representation was heavy on the industry and patent attorney side, said there is a need for a European Community patent, which could mean that a patent issued anywhere within the Community would apply to all.

Some industry representatives doubted the viability of a Community patent, particularly a “common political approach” drafted in 2003 by the European Union members. Since then, some members have taken issue with far-reaching language requirements and the role it would give to national patent offices.

But the industry representatives suggested moving ahead with a European arbitration system, in the form of the European Patent Litigation Agreement (EPLA). EPLA was agreed to in a draft agreement drawn up by the European Patent Office (EPO) on behalf of a working group with the latest version dated 16 February 2004. It has never been adopted or ratified.

A large number of speakers called for swift ratification of the London Protocol of 17 October 2000, which aims to create a “cost-attractive” post-grant translation regime for European patents, according to the EPO. But this is now in the hands of the French government, which opposes it, one participant said.

But there were also industry speakers, including from Nokia and Merck, who cautioned against centralisation of the patent system and said it should not be set up at the expense of the quality of patents, which they said was very good in Europe.

Others, such as the Association for Competitive Technology and Eurochambers, preferred arbitration and mediation to setting up a new court, and said this model was working well at the World Intellectual Property Organization.

Yet other groups, including the European Committee for Interoperable Systems, firmly opposed a Community patent as well as an arbitration system, saying that overprotection is not an incentive for innovation, and argued that the public interest should be respected.

The 12 July hearing was the first public discussion on the future of the European patent system. Earlier this year, the European Commission launched a written consultation to which it received “an overwhelming” 2,515 replies, it said.

Vincenzo Scordamaglia, retired European Union official and honorary director general of the Council of the European Union, pointed out that the Community patent has been discussed since 1968. He said the current Finnish presidency of the EU was “absolutely ready” to do what was necessary to bring forward the Community patent and the talks of EPLA together. But if the idea of a Community patent could not be developed, Scordamaglia said, “then we should move with the EPLA.”

According to the draft agreement, the EPLA could mean the setting up of a European Patent Court, which would deal with legal disputes involving European patents effective in one or more of the contracting states (IPW, EU Policy Developments, 13 July 2006).

The draft agreement states: “Set up a new international organisation, the European Patent Judiciary, to settle litigation concerning the infringement and validity of European patents effective in the contracting states which commit themselves to this new integrated judicial system.”

Countries such as Germany and Switzerland strongly support it, a source said. A number of the larger industry representatives supported this view in the hearing, saying that there is also a need for dispute settlement mechanisms for the current system of nationally granted patents. Among them was Didier Huck of the technology company Thomson, who said that the industry “needs predictability.”

Michelle Childs of Consumer Project on Technology (CPTech) said that, “as expected, most speakers pushed for a quick ratification of the EPLA and the London Protocol.”

Range of Positions

The positions voiced at the hearing could be divided into those favouring a stronger European patent regime, those opposing it and those taking a “yes, but” position.

A representative of small and medium-sized companies took issue with the construction of the panel and said there was a “biased sample of speakers,” a view supported by Free Software Foundation Europe, which said the meeting was a “room full of lawyers.” But the Commission said that it had received more than 120 requests to speak, and it had done its best to choose speakers. The preliminary findings of the written consultations are available online, and all the replies will soon be, the Commission said.

Among those in favour of harmonisation was Giuseppe Gargani, president of the Legal Affairs Committee of the European Parliament. He said the cost of filing a patent in Europe is much higher than in the United States and this is a “gap we can no longer tolerate,” saying that length and complex procedures also are problematic.

Fabien Raynaud, a permanent representative of France to the EU, also said he wanted a Community patent quickly but said the language aspects should be respected.

Urs Furrer of the International Chamber of Commerce said the group “supports the EPLA as the best proposal so far,” as it would enable companies to resolve patent disputes in a timely and coherent manner. But Furrer doubted the viability of a Community patent. He said that the EPLA still is needed, whether or not it is based on a Community patent. The German Federal Patent Court agreed.

The German Patentanwaltskammer (patent lawyers’ association) said the Commission should withdraw the Community patent proposal.

But there were also those who took a more cautious view, among them Nokia, which said that it did not welcome the EPLA proposal unconditionally. The representative said a company was unlikely to be involved in litigation in more than one country and it is thus questionable whether the costs of having a central case would be justified. Nokia also wanted procedural rules up front and said the EPLA should be optional also in the long run.

The European Chemical Industry Council took a similar stand and called for a “carefully thought-out evolution, not a revolution.”

Among those opposing the EPLA was the Software Developers Community (SDC), CPTech and the Foundation for a Free Information Infrastructure (FFII).

Florian Müller of SDC said that many of the EPO-granted patents are ruled invalid and it does not make sense to hand over the control of the EPLA to the European Patent Organisation.

Müller took issue with three points regarding the EPLA: cost of litigation when complaints in one country have to be dealt with by an EU court; the lack of judicial independence as the EPO will issue patents as well as control the judicial system, which is “unacceptable in a 21st century Europe”; and finally, if the Commission really intends to increase competition, it must cut the number of patents granted and avoid patent inflation.

FFII agreed and said that if the EPLA judges were to be appointed by the EPO, and could renew their tenure after six years, they would not be independent. It said that an executive branch cannot control the judiciary.

CPTech said that the push for a Community patent would be resisted by public interest groups unless the Commission dealt with four issues: opening the discussion and decisions to others than the rights holders, clearly state purpose and objective, more independent studies on the real problems of the patent system, and the need for a robust and effective mechanism to address abuses of the patent system.