EU Commission Pushes for Litigation Agreement - Mueller

Special to ag-IP-news Agency

BRUSSELS - The European Commission held a hearing on July 12, 2006 in Brussels on the future of European patent policy, the EU's Internal Market Commissioner Charlie McCreevy sided with lawyers and big-industry lobbyists by supporting the European Patent Litigation Agreement (EPLA).

McCreevy described the EPLA as a "promising route" and said, "I have asked my services to move forward with this project."

He also announced a "multi-faceted package" of patent policy proposals that he will put forward before the end of the year and mentioned "patent trolls", especially in the IT sector, as an issue he plans to tackle.

Anti-software patent campaigners spoke out strongly against the EPLA at the first large-scale clash of the pro-and anti-software patent camps in more than a year since the European Parliament rejected the software patent directive.

The European Parliament plans to vote on a patent policy resolution in late September. In the build-up to that vote, there will be an intense debate on the EPLA and, in particular, on whether it would result in the legalization of software patents in Europe and an explosion of litigation costs.

Florian Mueller, the founder of the award-winning NoSoftwarePatents campaign that helped to defeat the EU software patent directive last year, was one of the speakers at the hearing.

Muller said in his speech that the EPLA "is just another attempt to give software and business method patents a stronger legal basis in Europe than they have now. From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had, not only would software patents become more enforceable in Europe but also would patent holders in general be encouraged to litigate." 

The audience at the hearing consisted of an estimated 200 lawyers, lobbyists and government representatives. The Commission gave more than 50 people an opportunity to speak out, and the vast majority of them backed the EPLA.

On the other hand, the opponents of software patents, including Austrian Green MEP Eva Lichtenberger, complained in their speeches that their movement was grossly underrepresented.

The legal status of software patents in Europe is contradictory. While the existing written rules, which go back to the year 1973, disallow patents on computer programs "as such", the European Patent Office (EPO) and various national patent offices have granted tens of thousands of software patents. However, European patents, even if granted by the EPO, can only be enforced country by country as of now, and national courts declare many EPO software patents invalid when their holders try to use them against alleged infringers.

Critics argue that the EPLA would create a new court system that would be under the control of the same group of government officials who already govern the EPO, and that the judges appointed by those people would support the EPO's granting practice and its broad scope of patentable subject-matter with respect to software and business methods.

Mueller also expects that one of the next steps will be for the European Commission to ask the European Court of Justice for an opinion on whether the ratification of the EPLA requires direct involvement on the part of the EU or whether any EU member states would be free to conclude the EPLA on their own. The EPLA's proponents would prefer to eliminate the need to reach a decision at the EU level, fearing that the European Parliament might once again wreck their plans.