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)  EWHC Admin 390 (BAILII) at paragraph , 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