From jean-paul.smets@mines.org  Mon Aug 28 14:57:17 2000
Date: Mon, 28 Aug 2000 16:57:17 +0200
From: Jean-Paul Smets jean-paul.smets@mines.org
Subject: [Patents] EU Patent Law Update

Hi,

I just found two interesting documents on the EC web site.

http://localhost:8080/eur-lex/fr/com/pdf/2000/com2000_0412fr01.pdf
(in French)
http://localhost:8080/eur-lex/en/com/pdf/2000/com2000_0412en01.pdf
(in English)

is the final proposition for the community patent law

http://localhost:8080/eur-lex/fr/com/pdf/2000/com2000_0199fr01.pdf
(in French)
http://localhost:8080/eur-lex/en/com/pdf/2000/com2000_0199en01.pdf
(in English)

is a survey of software protection in Europe

Comments on final proposition for community patent law
------------------------------------------------------
First, one must know it is not a DIRECTIVE but a REGULATION. This means that it
has immediate effect once it has been approved by the European council of
ministers. REGULATIONS are usually considered as more "technocratic", which
means that they are mostly the outcome of expert closed discussions and that
they can be passed with little or no democratic consultation. 

The proposed approach is interesting and rather consistent in terms of Law. The
key ideas is that
	1- the European Commission becomes a member of the European Patent Convention
(EPC)
	2- the European Commission creates a centralised juridiction specialised in
patent law

The definition of "patentable invention" is delegated in some sense to the
European Patent Office (EPO). The regulation states that all provisions of the
EPC will apply to community patent, including EPO jurisprudency in terms of
granting or not patents. The introduction of the text states that the regulation
should be passed after the revision of the EPC in order to include various
expected changes to the EPC, so that they apply to the community patent without
possible contradiction.

The notion of "centralised juridiction specialised in patent law" has two
different parts. The fact that it is centralised garantees the uniformity of the
way patent Law is enforced accross Europe. One may eventually expect this
centralised juridiction to judge faster than some national juridictions. The
fact that it is specialised means that most judges of the juridiction will come
from the European Patent Office or from national patent offices, just because
there aren't so many patent experts in Europe. This may lead at the European
level to a situation similar to what happens currently in Germany. In Germany,
judges of the highest appeal court (justice) and judges of the highest chamber
of appeal (patent office) belong to the same professional community, and rule in
a very consistent way. In practice, this leads to a juridical system where
judges rule in the same way as patent offices do.

In conclusion, the proposed regulation takes community patent law out of the
hands of national governments and puts it in the hand of the  people who
decided, at the European Patent Office level, to extend patentability to
software and business methods through abusive interpretations of the EPC. This
regulation provides what was expected in terms of simplifications and
consistency, which is probably good. But the price to pay may be high, if the
European Patent Office keeps on taking important decisions without effective
control from national governments. It would cetainly be desireable to include in
future revisions of the Munich convention various provisions in order to provide
some kind of democratic control of this organisation.

Comments on survey
------------------
This report says that IT professionals agree to say that copyright provides them
a good protection.

Software patents are introduced in the report. The main justification which is
provided is not based on the fact that IT professionals want them but on the
fact that the Law is not clear and that it should be changed. The report quotes
a position from the previous EU parliament in favour of software patents. A
clever formula is used to justify this change : instead of claiming that
programmes can be patented, the report states that "programmes can already be
protected with patents". 

Although this statement is legaly true, it has as much legal meaning as stating
that "mathematics can be protected with patents". However, although nobody would
consider that "mathematics can be patented", in the case of software, people
tend to believe that "programmes can be protected with patents" is equivalent to
"programmes can be patented".

The hidden meaning of this kind of statement is that the EPO has used a very
extensive interpretation of the term "as such" in order to grant patents to
computer programmes. This interpretation is probably so extensive nowadays that
it may be considered as abusive by national judges. Therefore, the EC and the
EPO want to change the EPC quickly, and make sure that for community patents,
they will be able to keep on extending the patent system without fear of
national rulings.

JPS.




