[Ecommerce] FFII Compares EPLA with US Fed Circuit Court of Appeals

Wed Jul 12 12:08:08 2006

-------- Original Message --------
Subject: [ffii] FFII statement at EU patent policy hearing
Date: Wed, 12 Jul 2006 14:18:10 +0200
From: Jonas Maebe <jmaebe@ffii.org>
To: news@ffii.org

PRESS RELEASE -- [ Europe / Economy / ICT ]

================================================
FFII statement given at EU patent policy hearing
================================================

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

========================================================================
Links
========================================================================

* 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

========================================================================
Contact Information
========================================================================

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

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

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

========================================================================
About the FFII -- http://www.ffii.org
========================================================================

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.

_______________________________________________
FFII Press Releases.
(un)subscribe via http://lists.ffii.org/mailman/listinfo/news, or
contact media@ffii.org for more information.