30 August 2005

Software Patents: Call for EP Resolution

The Channel Register has drawn my attention to an interesting article by Mr Florian Mueller in euObserver.com entitled "Parliament should pass resolution on software patents". The gist of the article is a call to the European Parliament to pass a "short and simple resolution that calls on the administrative council and the president of the European Patent Office to take the appropriate measures so that the existing law be complied with......."

Whatever one's views on the desirability of software and business method patents, such a resolution would be impertinent. As Jacob J said in R v Comptroller (ex parte Lenzing AG) [1996] EWHC Admin 390 (BAILII) at paragraph [16], the EPO has nothing whatsoever to with the EC:
"The EPC did not form and does not form part of the legal framework of the then European Economic Community (now the European Union). Countries outside the Community can be and are signatories. Switzerland, for instance, was a founder member of the EPC and one of the first countries to ratify it. There are now 17 member states and others (including perhaps some Eastern European countries) are actively thinking of and preparing to join. Thus the EPC is a free-standing international convention."
In the last 9 years, the number of contracting parties has double. Many of the countries that have acceded to the EPO have no intention, or no immediate prospect, of joining the EU.

Some of Mr Mueller's other remarks are close to intemperate. One example is his paragraph heading "Patent offices disobey the law" albeit that it is watered down in the text to "flagrantly bending the law". Another is his observation that "until they are invalidated, [invalid software] patents can be used to intimidate the innocent". The difficulty that most of my clients find is quite the reverse. IP litigation is so expensive (at least in this country) that they dare not risk enforcing palpably valid patents. There are effective safeguards, such as s.70 and s.71 of the British Patents Act 1977, to discourage patentees from throwing their weight about.

I am not altogether sure that the exceptions actually confer a competitive advantage upon us or that we are the envy of many in Asia and North America. Many of the SME in the North of England who come to see me would love to be able to protect their investment in innovation in financial services, e-commerce, healthcare and so on. I know of at least one IT (not particularly large) company from another part of England that has been forced to litigate in the USA to protect is investment in R & D because it would never get anywhere near the courts in this country and even if it did it would stand much greater risk of revocation of its European patent than it would of revocation of the corresponding US patent in the USA.

Even if art 52 EPC does give us a competitive advantage, the question that arises is should it? Art 27 (1) TRIPS requires patents to "be available for any inventions, whether products or processes, in all fields of technology." That requirement is incorporated by reference into the WTO agreement that governs world trade.

The objections to software and business method patents in Europe seem to me to be primarily social and economic. The argument is that the companies that would stand to gain most from them would be companies outside Europe. Mr Mueller seems to allude to that argument by his claim that "if Europe doesn't send a signal to the rest of the world, then the US government might just have its way." It seems to me that these arguments are not altogether different from those in favour of the common agricultural policy or, perhaps more topically, for excluding Chinese made garments from our stores.

Related Posts in August 2005:
29 Aug 2005 "Applying for Patents"
28 Aug 2005 "UK Patents Acts 1977 - 2004"
25 Aug 2005 "Patents - Excluded Matter: NMR Holdings Pty Ltd.'s No 2 Application
22 Aug 2005 "Basic Patents - IPR Helpdesk Briefing Paper on European Patents

2 comments:

Sulliman OMARJEE said...

The discussion about software patent is a very sensitive one that, in my view, cannot be solved by a "simple resolution". Best proof is the tension arisen when discussing the previous project of EU Directive on computer generated invention (if this is well translated in english) that finally lead to its abandon.
However, according to my sources, the specific case of software patents should come again in the front of the scene in the field of another project of EU Directive about the adoption of a European Patent. Indeed, following the model of the European Trademark, discussion are opened about organising a unic patent enforceable in all EU member states. If this were to happen, obviously the EU Patent granted would be diferent than the patents granted by the EPO which is, as u mentionned not par of the EU legal framework.

John Lambert said...

Thanks for your comments, Sulliman. They show that at least one person reads this blog.

I am not sure that the Community patent would require a change in the substantive law. If I understand the proposal correctly, the Community patent would be like any other type of European patent except that it would designate all 25 EC member states as though they were a single party. Applicants could and would designate states outside the EU like Switzerland and Turkey.

Examination would continue to be carried out by the same examiners as now. The Convention (modified by Munich 2000 which should be in force soon) would be applied to applications designating the EC in exactly the same way as it is applied to applications designating individual EC member states.

If there is to be any change to the EPC it will come from a second diplomatic conference. Abolition of the exceptions to patentability was discussed by the delegates in November 2000 but shelved for another diplomatic conference which was expected to take place fairly shortly.

The momentum for further reform of the EPC seems to have been lost. I am not sure why that should be - perhaps everyone's attention was diverted to the Community patent which came very close to adoption at one point - perhaps the public and thier governments now have better things to think about.