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1. European Commission: EPO Case Law Not Binding - Software Not Patentable - Jonas Maebe <jonas.maebe@ugent.be>
PRESS RELEASE -- [ Europe / Economy / ICT ]
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European Commission: EPO Case Law Not Binding - Software Not Patentable
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Brussels, 24 May 2006. In a reply to a question from Polish MEP and
inventor Adam Gierek, the European Commission has confirmed that the
European Patent Office's (EPO) case law is not binding for member
states, nor (under the proposed Community Patent regulation) for the
European Court of Justice (ECJ). For the first time, the Commission
has also clearly stated that computer programs are not patentable
subject matter, without hiding behind the infamous "as such" cop-out.
Prompted by a previous Commission statement that "case law which the
EPO developed for the European patent will apply to the Community
patent", Professor Gierek's question pointed out that EPO practice
differs from recent software patent case law both in Poland and the UK
and that Mr Rocard MEP, rapporteur for the software patents directive
in Parliament, stated that its failure was a rejection of the EPO's
extension of patentability to software programs.
The Commission replied that the pre-grant phase of patents could still
be still be governed by the European Patent Convention (and thus be
handled by the EPO), but that post-grant aspects such as validity and
litigation would fall under Community Patent regulation. The ECJ would
also be able to form its own opinion, independent of EPO case law.
Their conclusion is that in practice, the EPO would therefore have to
follow Community Patent case law and not the other way round.
FFII President Pieter Hintjens said: "I'm stunned. The Commission has
been denying reality for so long and pretending that the earth was
flat and apples did not fall downwards, whereas the EPO has been
obnoxiously granting unwarranted pieces of paper whose only innovative
effect has been in the domain of patent litigation. Does the
Commission now accept that the EPC rules do actually rule? Or have I
misunderstood something?"
He further added: "The proposed Community patents will be granted by
the EPO: a non-accountable, non-Community organisation, with no
independent appeal possible. The Commission says this is no problem
since the ECJ can invalidate the granted patents in infringement
cases. That is however only true if it comes to civil litigation,
which is often too expensive for SMEs, forcing them to pay for a
license. Therefore software patents not yet taken to court will impose
an enormous burden on the industry."
"It is nevertheless good to see that the Commission no longer presents
EPO case law as 'the status quo which must be codified'. However, it
relies too heavily on courts to keep Europe safe from software
patents. Whether or not Europe should have software patents is not a
legalistic detail which should be left to courts to sort out. It is a
crucial economic policy decision which must be taken by our elected
representatives."
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Background information
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* Commission saying computer programs not patentable?
The statement by the Commission that "patents granted for a subject
matter (such as computer programs), which is excluded from
patentability pursuant to Article 52 EPC" is not necessarily a 180
degree turn.
For example, in a recently published decision the EPO's Technical
Board of Appeal (TBA) approved a patent by Microsoft on allowing copy/
paste of arbitrary data as opposed to only a few system-defined kinds.
In its justification, the TBA literally stated that as soon as a
computer program is executed on a computer, they no longer considered
it to be a computer program (but a "computer-implemented
method/invention") and consequently perfectly patentable.
The Commission may be using a similar wordplay. Nevertheless, its
confirmation of the fact that the EPO's case law is not gospel is a
step in the right direction. This starkly contrasts to its position
during the software patent directive debate, where it always talked
about "harmonisation of the status quo" when referring to the
codification of European software patents according to EPO practice.
* EPO ruled by the ECJ?
On the topic of the ECJ forcing the EPO to adopt a particular
practice, FFII analyst Ante Wessels added: "It is not true that the
EPO would necessarily apply and be bound by the new unitary Community
Patent law. The Community Patent merely creates separate legal systems
which allow for different interpretations. There is no hierarchy - the
ECJ is not above the EPO and cannot tell it what to do. The EPO can
sell Community titles, Community software patents, and then the ECJ
can say: 'Sorry the Community title you just bought is worthless'. The
Commission advocates a cheap trick. And we can only hope the ECJ will
indeed invalidate software patents."
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Links
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* Question by Adam Gierek MEP (13 April 2006)
http://wiki.ffii.org/Gierek060413En
* Answer by the Commission (18 May 2006)
http://wiki.ffii.org/Gierek060518En
* TBA decision T 0424/03 - 3.5.01 on "Clipboard formats I/ MICROSOFT"
(from February 2006, but only recently published)
http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf
* Provisional patent publication EP0717354: Data transfer with
expanded clipboard formats (Microsoft)
http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=EP0717354&F=0
* Community Patent analysis:
http://consultation.ffii.org/
* Permanent link to the press release
http://wiki.ffii.org/ComGierekPr060524En
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Contact Information
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Jonas Maebe
FFII Board Member
jmaebe@ffii.org
(Dutch/English)
Ante Wessels
FFII analyst
+31-6-100 99 063
ante@ffii.org
(Dutch/English)
Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion@ffii.org
(French/English)
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About the FFII -- http://www.ffii.org
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The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.
End of digest for list patents - jeu mai 25 13:26:21 2006
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