[Fsfe-ie] Fw: [ffii] FFII statement at EU patent policy hearing

Wed Jul 12 14:33:23 CEST 2006

----- Forwarded Message ----
From: Jonas Maebe <jmaebe at ffii.org>
To: news at ffii.org
Sent: Wednesday, 12 July, 2006 1:18:10 PM
Subject: [ffii] FFII statement at EU patent policy hearing

PRESS RELEASE -- [ Europe / Economy / ICT ]

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          FFII statement given at EU patent policy hearing
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Brussels, 12 July 2006 - The FFII today asks in its speech at the EU
patent policy hearing for addressing the European patent problems at the
core: the malpractice of the European Patent Office (EPO). The FFII is
particularly concerned about how the proposed European Patent Litigation
Agreement would put the only future European patent court under EPO
control. In the US, a single centralised patent court led to the
proliferation of software and business method patents. Europe must not
make the same mistake.

Honourable Chair,
Ladies and Gentlemen,

The FFII represents 3,500 IT companies and 100,000 IT individuals. I
will speak on behalf of the FFII constituency.

As has been said by other speakers, the EPLA will make litigation 2-3
times more expensive. Numbers come from the EPO.

What does this mean for SMEs?

It means that if you are an SME and have a patent, it will become harder
to enforce your patent because litigation just became 2-3 times more
expensive. It also means that if you are an SME and accused of patent
infringement, it becomes harder to defend yourself because litigation
just became more expensive. And if you cannot defend yourself, you will
be forced to license, even if the patent is weak or invalid.

Granted patents that are invalid are a plague, yet 50% of all patent
litigation concerns patent validity. That means every second trial
relates to a problem that should not be there in the first place. Every
second patent trial is a trial which could be 100% cheaper for all
parties involved if the organisation responsible for the granting of
patents would have taken it's full responsibility, but also if these
patents would never have been filed.

Patent inflation is not a victimless crime. The victims are SMEs, even
more so if litigation becomes 2-3 times more expensive.

But instead of fighting patent inflation and work on the problems at the
EPO, we are now focussing on litigation.

Why is that so?

Maybe the answer lies close to what the Commission recently said in the
Extended Consultation documentation, where the Commission strongly
criticised the European Patent Office over attempting to define European
patent policy. I quote:

  "Whilst being basically a patent granting office, the EPO has
  ambitions to steer patent policy at European and international levels.
  It has a business culture of its own with very little understanding
  for what happens in Brussels in a more global context.

  Initiatives from Brussels implying changes to the existing
  multilateral European patent system are considered as an attack on the
  holy writ. The EPO has close ties with national patent offices and far
  less with the ministerial level in Member States.

  Recently the EPO has become subject to growing criticism by MEPs and
  various EU Member States for a lack of political accountability."

End quote.

Now, if lack of political accountability is considered a problem, why
give EPO even more power? The EPLA would remove all national patent
courts and put a single European-wide court in its place. However, the
judges of this European-wide court would be appointed by the people who
run the European Patent Office. Moreover, these judges could hold
positions at the European Patent Office in parallel. Further, every six
years these judges can be re-appointed if they live up to the
expectations of, again, the very same people who run the European Patent
Office.

EPLA puts an executive organisation in charge of running the judiciary.
This is unacceptable. Tax offices, city planning departments and social
assistance offices do not re-appoint judges deciding over their work,
and there is no reason why a patent office should be exempted from this
rule.

An executive must not control the judiciary. The Commission, if anyone,
must know that. Why this extremism?

Petty differences between EPO and national interpretation and patent
practice need not EPLA to be resolved. European judges can themselves
find out if e.g. the special term "edible fruit" is disclosing prior art
compared to the general term "vegetables". But the more serious, EPO
also thinks programs for computers are inventions, even if EPC and its
national implementations say that they are not. This is a fundamental
difference.

It has been said the centralised US court "Court of Appeals for the
Federal Circuit" was the driving force behind the introduction of
software and business method patents in the US. Maybe this is the most
important reason why EPO needs EPLA, but is it what Europe needs?

The answer from the European Parliament last year was No.

Thank you

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Links
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* EU patent policy hearing agenda
 http://ec.europa.eu/internal_market/indprop/docs/patent/final_agenda_en.pdf

* Commission criticises EPO's behaviour and lack of accountability
 http://wiki.ffii.org/ComEPOPr060710En

* EPLA analysis showing EPLA will be more expensive for SMEs
 http://wiki.ffii.org/EplaAnalysisEn

* Permanent link to this press release
 http://wiki.ffii.org/PatHearing060712En

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Contact Information
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Erik Josefsson
FFII representative
+32-484-082063
ehj at ffii.org
(Swedish/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at ffii.org
(French/English)

Jonas Maebe
FFII board member
jmaebe at ffii.org
(Dutch/English)

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About the FFII -- http://www.ffii.org
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The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.

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