Another open door for software patents in EU

By EDRi · May 20, 2009

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Deutsch: [Noch eine offene Tür für Softwarepatente in der EU |]

A new international treaty United Patent Litigation System (UPLS) that may
create an centralised trusted patent court is the new open door for software
patents in the European Union.

The draft UPLS is inspired from the now defunct European Patent Litigation
Agreement (EPLA) and is estimated to creat a new international patent court.
As FFII (Foundation for a Free Information Infrastructure) points out, the
system will by-pass the national courts. This court system would be shielded
against any review by the European Court of Justice (ECJ). Thus, hand-picked
patent judges will have the last word on software patents, meaning that will
have the ultimate power to interpret patent law.

After the Recommendation of 24 March 2009 of the European Commission to
the Council that would provide the Commission with negotiating directives
for the conclusion of an agreement creating the UPLS, the Competitiveness
Council of EU Ministers of 28-29 May will request a legal opinion to the ECJ
about potential conflicts of the UPLS with the EU treaties.

The UPLS will not be a EU institution (the same as for the present European
Patent Office – EPO) and thus will exceed the competence of the European
Court of Justice that will 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.”

Benjamin Henrion, President of the FFII and leader of its litigation working
group, explains: “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 patent law.”

Brian Kahin, senior fellow of the Computer & Communications Industry
Association, underlines that the US experience proves that “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
what typically happens in Germany where the Senate of the Federal Patent
Court should refer basic questions to the Supreme Court but do not do this.

European Commission pushes for software patents via a trusted court

Patents: Commission sets out next steps for creation of unified patent
litigation system (24.03.2009)

Recommendation from the Commission to the Council to authorise the
Commission to open negotiations for the adoption of an Agreement creating a
Unified Patent Litigation System (20.03.2009)

“Council seeks to legalise software patents with the Community Patent” says
French expert (11.02.2009)