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Czechs call for unity on patent legislation
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| Diplomats say that, because of its potential to turn into an international
| agreement, the draft litigation system needs to be checked by the ECJ to
| determine whether it is in line with the EU's treaties. National experts will
| meet tomorrow (8 May) to discuss the exact questions to be put to the ECJ.
| Supporters of the system hope that sending the draft to the ECJ will spur
| talks on finalising the text. Unresolved issues in the Council of Ministers
| include French concerns that the system would not use the ECJ as its court of
| final instance, German concerns that it will work less effectively than its
| own national patent litigation system and Spanish worries over the proposed
| language regime.
*European Commission pushes for software patents via a trusted court*
Brussels, 12 May 2009 -- The European Commission is pushing for software
patents via a centralised trusted patent court that would be created with the
United Patent Litigation System (UPLS), an international treaty that would
remove national courts. This court system would be shielded against any review
by the European Court of Justice (ECJ). Thus patent judges would have the last
word on software patents.
At the next Competitiveness meeting of May 28-29, the Council of Ministers will
request a legal opinion to the ECJ about potential conflicts of the UPLS with
the EU treaties. The current draft mentions that the ultimate power to
interpret patent law will rest with hand-picked patent judges.
Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure
(FFII) predicted this already in 2007: "I don't think EU joining European
Patent Convention (EPC) would automatically mean that ECJ can intervene on
substantive patent law questions. If there is a ECJ above the European Patent
Judiciary (EPJ), then probably only for very special questions relating to
areas outside patent law, such as EU treaties, and it would not be accessible
to the litigating parties but only to the EPJ itself."
Benjamin Henrion, President of the FFII and leader of its litigation working
group, says: "A central patent court forbidding any petition right for review
to the ECJ means the patent court has the last word over software patents. The
Agreement is drafted in a way to avoid the ECJ intervention on substantive
Brian Kahin, senior fellow of the Computer & Communications Industry
Association, says: "Given the U.S. experience with the Court of Appeals for
the Federal Circuit and the many areas where the Supreme Court has recently
stepped in to provide balance, it is clear that the European Court of Justice
needs to be able to oversee the evolution of patent law. Otherwise, there is
constant danger that a self-interested patent community will successfully
press to expand the scope, volume, and power of the patent system."
The UPLS carries the risk that specialized patent courts will have the last
word for important questions such as limits of patentability. This is
typically what happens in Germany where the Senates of the Federal Patent
Court should refer basic questions to the Supreme Court but do not do this.
Benjamin Henrion concludes: "This specialized patent court will be shielded
against external intervention and won't be an EU institution. Those patent
judges want to have the last word over European patent law."
The proposed United Patent Litigation System (UPLS) is an international treaty
which is heavily inspired by the now defunct European Patent Litigation
In 2005, large companies asked the European Parliament to drop the software
patent directive, and push for a central patent court instead.
The German Federal Ministry of Economics and Technology clarified that the
validation of software patents goes via central caselaw: "We must moreover
continue to attempt to harmonise the practise of granting patents for
computer-implemented inventions at the European level. This is to be attempted
by a common European patent court system (EPLA) in which the member states can
voluntarily participate. Thereby a unified procedure and legal certainty are
The current UPLS draft is shielded against ECJ intervention in software patents
and substantive patent law. The centralised patent court won't be an EU
The Court of Justice of the European Communities would only "rule on
preliminary questions asked by the court structure established in the
framework of the Unified Patent Litigation System, [...] on the interpretation
of EC law and on the validity and interpretation of acts of the institutions
of the Community." The UPLS itself would not be a "institution of the
Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.
On the other side of the Atlantic, specialized patent courts in the United
States (CAFC) have watered down the patentability requirements, allowing
software patents, business method patents and lowered the threshold for patent
quality. The poster child of the lowering quality is the Dembiczak case, where
the specialized patent court allowed a patent over a plastic bag with a
pumpkin drawing. The Supreme Court judges overturned the patent, heavily
criticising the obviousness threshold of the specialized patent court: "This
is gobbledygook. It really is, it's irrational. It's worse than meaningless."
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