EC pushes on with Europe-wide patents

The European Commission is again trying to get the Community Patent adopted, but an Appeals Court judge claims the original proposal 'fell flat on its face for very good reasons'

European Commissioner Charlie McCreevy is making a 'final effort' to push through the proposal for an EU-wide patent.

The EC launched a public consultation on Monday that invites individuals and companies to comment on the Community Patent and related changes to the current patent system, such as the launch of a European Patent Court. The consultation document states that the Community Patent is a "priority for the EU" and that McCreevy has "stated his intention to make one final effort to have the proposal adopted during his mandate".

The introduction of a Community Patent would allow inventors to obtain a single patent that is legally valid throughout the European Union. The EC says this would reduce the costs of filing and litigating a patent.

The original proposal for the Community Patent was rejected by the EU Council in March 2004. At the time the EU claimed that "the main sticking point was how infringements of patents which might arise as a result of mistranslations should be treated."

Sir Robin Jacob, a judge at the Court of Appeal who specialises in intellectual-property law, claimed last week (prior to the EC's announcement) that he believed the Community Patent proposal failed for other reasons.

"The Community Patent has fallen flat on its face yet again for two very good reasons — one is language and one is judges," said Judge Jacob, speaking at a seminar for the Society for Computers and Law on Thursday evening in London.

The European Commission originally proposed that any infringement cases should be conducted in the official language of the member state where the defendant resides. But, Justice Jacob said this proposal was 'absurd', pointing out that this would mean that if a Latvian company had infringed your patent, you would need to sue them in Latvian.

"The commission proposal that the defendant has to be sued in their own language was about as stupid an idea as you can possibly imagine. If you wanted this thing [the Community Patent proposal] to fail then that would be pretty guaranteed to do it on its own," he said.

Instead, Judge Jacob proposed that a language is chosen that is "appropriate for the case".

The European Commission also originally suggested that a European Patent Court (EPC) should be set up, which would have jurisdiction over cases regarding the "validity and infringements of European patents". This court would appoint both "legally qualified judges", who had sufficient experience of patent law, such as judges who had worked on the European Patent Office's Board of Appeal, and "technically qualified judges", who had experience in a particular field of technology, according to the proposal document .

Judge Jacob claimed the EC showed a limited understanding of technology, in its suggestion of "technically qualified judges".

"The European Commission's proposal would have been a total disaster. They had an idea that there would be technical judges, and they said 'there are seven fields of technology'. Only somebody with an arts degree could say that," he said.

The suggestion that judges from the European Patent Office's Board of Appeal could be appointed at the European Patent Court was also criticised by Justice Jacob.

"The European Patent Office Boards of Appeal is a pretty damn silly system — they are judges and yet they are part of the European Patent Office and that stinks. They shouldn't be part of the [Patent] Office," he said.

If EPO appeal judges were independent of the Patent Office and worked in a different location then there "wouldn't be a problem with them being part of a European Patent Court", according to Judge Jacob.

Pieter Hintjens, the president of FFII, an intellectual property campaign group, agreed with Judge Jacob's comments regarding the importance of judicial independence in a European Patent Court.

"We agree entirely with Judge Jacob that a situation in which the same EPO bureaucrats would issue patents and also sit as judge and jury on patent litigation would be a disaster for the EU," he said.

While the EU claims that the Community Patent is necessary to reduce the costs of filing and litigating a patent, Hintjens believes it is more important that the EPO stops granting "large numbers of weak patents".

"The EU needs a cheaper patent system but above all it needs a technology sector that is free from the ruinously expensive litigation that is strangling the US high-tech industry. While the cost of obtaining an EU patent is high, the cost of defending against junk patents is much higher. It is the patenting of common ideas that presents the real danger to the high-tech industry," Hintjens said.

In his speech to the Society for Computers and Law, Justice Jacob also questioned whether software patents should be granted and criticised the US for allowing "anything under the sun" to be patented.