EU court

[PILCH Hartmut <phm@a2e.de>]

> > > 1 (not too sure if a EU court is better than state courts, and I'm 
> > > specially worried
> > > by the justification when it says it'll eb a "specialised" court, 
> > > meaning full of
> > > patent lawyers, not general judges)

It is said that the head of this EU court could be Dr. Landfermann, head
of german federal patent court who demanded program claims at the europarl
hearing on 2002/11/07 and pushed for deletion of "programs for computers"
when he was in the german ministery of justice.

Yet at least in Germany the Federal Patent Court (BPatG) has been better
at resisting the erosion of patentability standards than the Federal Court
of Justice (BGH).  The latter consists of lawyers while the former has
more engineers in it.  Landfermann is of course a lawyer and politician
who was imposed on BPatG by the government.  These are the worst, also in
the EPC, because they are clueless and tend to listen to the discourse
which they find to be the politically safest, i.e. supported by
influential circles such as the EPO's standing advisory committee (SACEPO)
or similar groups at the national level.

One danger of a centralised court may be that the judges lose contact to
the world of patent examination, which is fairly close to real problems as
technicians will view them.  Also, centralisation eliminates
the need to be honest when interpreting the law.  The fear that if you
play dishonest game some other court might say the truth and embarass you
has been one of the strongest motivations for judges to do good work.

Concerning games, see the Vivant quotation at

        http://swpat.ffii.org/archive/quotes/

which is available in english now.

We have warned about the dangers of a centralised transnational patent
system at

        http://www.eurolinux.org/news/cpat01B/

If this route is taken, it becomes all the more important to take the
legislative functions out of such a court.  The European Parliament needs
to become serious about setting the rules itself, rarther than obeying the
EPO, as McCarthy proposes

        http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0302/

This is the only remaining rationale for a directive, since harmonisation
is 100% achieved already.

See also the new rationale part for the counter-proposal at

        http://swpat.ffii.org/papers/eubsa-swpat0202/prop/

All these are work in progress.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
135,000 signatures against software patents      http://www.noepatents.org/