In 2002, the Commission proposed a Directive on
Computer-Implemented Inventions which critics feared would open the
floodgates to software patents in Europe. After heated debate the
European Parliament threw out the proposal last year.
Now anti-software patent campaigners are opposing a proposal for
an international treaty, the European Patent Litigation Agreement
(EPLA), that would establish a new European Patent Court and,
according to the critics, endorse software patents.
Florian Mueller is a software developer who founded the
NoSoftwarePatents campaign which lobbied against the 2002 proposal.
He will speak at the European Commission's first public hearing
into the latest matter on Wednesday. "The EPLA is now the priority
of the Commission, the European Patents Office, some EU member
states such as Germany, and the lobbying organizations of big
industry," said Mueller, citing Microsoft and Nokia among its
backers.
Mueller has made the text of his speech on Wednesday available.
"The EPLA is just another attempt to give software and business
method patents a stronger legal basis in Europe than they have
now," he will argue. "From a software patents point of view, the
EPLA would have far worse consequences than the rejected
patentability directive would have had: not only would software
patents become more enforceable in Europe but also would patent
holders in general be encouraged to litigate."
The EPLA, drafted in 2004, proposes a new European Patent Court.
"There is already a European Patent Office," said Mueller. "The
EPLA would mirror the EPO's governance structure and create a new
European Patent Judiciary (EPJ), an international organization that
would run a new European Patent Court (EPCt)."
Mueller fears that this could lead to a doubling or a
tripling of the cost of patents in Europe.
When the Commission conducted a consultation process, cost was
one of the primary concerns, particularly of small and medium-sized
companies. Another worry of larger companies in the software sector
was that patents which are too broad in scope would be granted.
"The IT industry, represented by EICTA, identifies patent
quality as a primary issue of concern," said the Commission's
preliminary findings document. "On one hand, patents must be
rendered as incontestable as possible. This is not to be achieved
by enlarging patentability criteria and a lax review system, but
via a re-evaluation of the inventive step requirement through a
quality control system and rigour in examination and prior art
search."
While Mueller will be objecting strongly to the new proposals,
he is confident that the proposal for a community-wide patent will
not be ratified by the EU. "The community patent isn't going to get
the required unanimous support by the 25 EU member states anytime
soon, and internal market commissioner McCreevy recently repeated
that he won't introduce a new harmonization directive during his
mandate, which ends in 2009."
