Re: [Patents] Re: more misinformation from McCarthy

[Hartmut Pilch <phm@a2e.de>]

> > EU-wide means covering all the EU territory, not instituted by the EU.
> > Not all EU-wide law is EU law.
> >
> This a common mistake, however much venial than the former one and usually
> coming by people who have a background in a monistic legal system (like 
> France or
> Switzerland for instance). You refer to multilateral conventions, like the 
> European
> Patent Convention, but do not take into account that in all the countries 
> having a
> dualistic legal system (Ireland, UK and Italy for instance) what matters is 
> only national
> law, regardless to the convention language. This has a deep impact and it 
> is also what
> convinced me to change my mind on the need of EU law in the area, as I am 
> afraid
> there is no EU-wide law other than EU law. EU law has a final instance, 
> which is the
> Court of Justice, and the national courts are to follow the rules, while 
> the EPO answers
> only to God and under the EPC each national court in the EU has the right 
> to go its
> own way.

The EPO isn't god under the EPC.  It is just a patent office, and it
should follow the baseline of what national courts decide, based on the
uniform law.

Some have coined the term "cold harmonisation" for the inter-state
approach vs "warm harmonisation" (?) for the EU approach.

This is not really a bad approach.  Transnational supreme courts are
problematic, and too much power is concentrated in them.  Keeping a
plurality of courts means that the rules have to be clarified by a
democratic legislative process rather than by some unaccountable supreme
authority.

The inter-state approach is still used for new treaties, e.g. EPLA.
Nobody is complaining that they create disharmony.

If the inter-state approach wasn't good enough and supreme caselaw
authority was needed, the EU could simply regulate that Art 52-57 EPC are
EU law and put the ECJ in charge, couldn't it?

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/