[Fsfe-ie] Typical!

James Heald j.heald at ucl.ac.uk
Wed Mar 8 22:06:30 CET 2006

Florian Mueller has also put out a position paper today on the consultation:


In general, the more different outline responses the better, so people 
can pick and mix bits and ideas they like, and stir in points of their 
own, so the variety and range of responses is magnified.

As in all such consultations, anything distinctive, personal, 
quantitative or anecdotal that anyone can add in their own response is 
particularly valuable -- the more different the responses are, but still 
on-side, the better.

Also recently released is the response of the German Patent Attorneys' 
association -- which basically says to the EU Commission, "get out of 
the way and leave everything to the EPO".

So particularly when answering Q1, it is valuable to emphasise that 
setting up a technocratic stand-alone authority -- whether the EPO or 
new patent courts -- and mandating that it's just left to get on with 
things is not viable.

Instead it is of value for the patent authorities to be subject to the 
overall European (Union) legislative, executive and judicial structures.

It's important to stress that the wider considerations the Commission 
flags up in Q1 *are* important.  Questions do arise as to the proper 
interpretation of the Treaty -- in areas such as acceptable subject 
matter for patenting; or the required level of inventive step -- and a 
mechanism must be available for the legislature to have its say. 
Similarly questions can arise regarding the procedures of the EPO or the 
new courts -- are they ethical? do they reflect European standards of 
human rights? -- and these should ultimately be subject to the most 
senior European courts, the ECJ and ECHR.

The danger is that with the EPO and the EPLA, a patent structure will be 
created which is beholden to nobody.

The Commission is close to losing its nerve as to whether it should hold 
out for a ComPat style structure which is more integrated into the EU 
legislative/executive/judicial structure -- or whether it should just 
give up trying, let EPLA go ahead, and give up any EU-level influence on 
the patent system.

So a political point that needs to come out of this is that, yes the 
Commission should hold its nerve; there are important considerations 
that mean that the patent system should be tied in to other European 
legislative/executive/judicial structures; the Commission should not 
clear the decks of the issue and hand everything over to the EPO and a 
new parallel technocratic judicial establishment.

So it's worth not just quietly accepting Q1 in a "motherhood and apple 
pie" sort of way, but worth going further and saying "yes, this *is* 
actually rather important".

This might also be a point to suggest to eg MEPs too.

On the consultation more generally, a message we need to come through 
loud and clear is that cheaper, more simple, more powerful, more 
comprehensive routes to patent litigation and patent enforcement are not 
/necessarily/ a good thing, if they encourage bad (economically 
damaging) patents to be enforced.

Better ways to do litigation are only good, *if* efforts are made to 
clear the bad patents out of the way, to make sure that we're not just 
creating an extortionists' charter.

Key issues are more rigorous application of the subject matter test; and 
more demanding requirement on the question of inventive height.   These 
are preconditions before making patents cheaper/easier to enforce. 
Furthermore, the EPO's track record in these areas, particularly in 
relation to software, is especially under-inspiring of confidence.

Finally (but leading on from the last point), whatever system is adopted 
for litigation, there must be clear, visible, confidence-inspiring 
separation between it and the EPO.

The courts are the main check and balance on the patent-granting 
policies of a patent office.  The courts should be expected to examine 
issues with a much greater level of rigour.

To maximise the independence therefore, there should be no overlap 
between the administration of the patent judiciary and the 
administration of the EPO.  Whereas it may be proper for the 
administrative council of the EPO to be selected from national patent 
offices, the council overseeing the judiciary should be selected from 
the structures which oversee the national judiciary.

Similarly, those selected to become judges should normally be 
experienced national judges -- they should not transfer there directly 
from the EPO; and they should absolutely not job-share their new role 
with any continuing role at the EPO.

Finally, the new courts should be directed to rigorously uphold the 
European Patent Convention, and approximate the existing case-law of the 
courts of member states; they should explicitly not be bound to follow 
the present case law of the EPO.

There are some very good features of the EPLA, and there are arguably 
some rather bad feaures in the previously proposed legislative 
arrangements for ComPat.

But there is real danger in the possibility of EPLA coming down the 
conveyor belt and being adopted without any more thought.  (Something 
the EPO is notably lobbying rather hard for, and quite a lot of the rest 
of the patent establishment too).

When dealing with patents in the European Union, the new judges *must* 
be more explicitly tied to EU law, and EU judicial courts of final appeal.

There may also be some quite nasty issues hidden in the fine print of 
some of the langauge issues.  (If you're say a Latvian SME, could you be 
sued over a patent only available to you in a foreign language, and 
furthermore have to defend yourself in proceedings entirely held in that 
foreign language.  I need to do more reading to be 100% sure, but if 
that was the case it could be particularly SME-unfriendly).

Anyway, that's my instant braindump on the issue.  Sorry if it's been a 
bit rambling and covering the same point several times some of the way!

All best,


Malcolm Tyrrell wrote:

> I finally get around to working on the patents questionaire and
> the very next day the FFII issue their guidelines for answering
> it.
> Here's their page (I've haven't read it yet):
> http://consultation.ffii.org/Introduction
> Here's my attempt (just some sketched answers):
> http://www.ifso.ie/cgi-bin/wiki.cgi/QuestionaireReponse
> Good luck,
> Malcolm.
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