Three different ways to get software patents

EPLA provides at least three separate ways to get software patents. Read how special interests can take control of lawmaking, circumvent European Parliamentary decisions, and create laws that no-one wants except the patent industry.

Direct effects

Known and expected effects of the EPLA proposal:

  • The European Parliament would have no oversight. Thus EU citizens would be subject to a legal regime that allows no input from democratic processes.
  • EPJ judges would be appointed by the same people who run the EPO, a serious conflict of interests.
  • EPJ judges would be appointed for fixed terms, so they would be forced to follow EPO practice.
  • The EPJ would be financed by patent litigation, creating a second international organisation that makes money from patents.
  • The European Court of Justice would have to implement the text of the EPC, which can be modified by the EPO Administrative Council.

Very simply, the (same people who run the) EPO - which already grants software patents on a huge scale - would get full judicial control over these patents. Mark Webbink, Deputy General Counsel for Red Hat, notes, "EPLA's supporters are experts in obtaining patents, not innovation."

Software patents

Indirectly, EPLA would legalise software patents almost immediately, as these are allowed by the EPO, and mostly rejected by national courts. From the point of view of the software industry, EPLA is very clearly a tool to get software patents allowed in the EU, after these were rejected by the EU Parliament in 2005.

EPLA would allow the patent industry to introduce software patents by at least three separate routes:

  1. Impose its own interpretation of the European Patent Convention by appointing judges who would enforce the EPO's practice of interpreting article 52 of the EPC to mean software and business methods are fully patentable.
  2. Modify the EPC Implementing Regulations to force the European Court of Justice to adopt the EPO's practice. This requires a 75% majority vote of EPC signatories.
  3. Modify the EPC itself, removing the constraints of article 52. With the EPC2000 treaty, which comes into force in December 2007, the EPO can 'fix' the EPC. This would require a unanimous vote of EPC signatories.

In all these cases, one of the key levers is the EU's becoming a contracting party (signatory) of the patent convention and/or EPLA.

Other effects

  1. To make patent litigation, in both enforcement and defense, much more expensive.
  2. To move the patent system outside of EU control, and make it hard to reverse that move.

However, EPLA would also lower the bar on patent quality in all areas as the EPO's TBAs have systematically lowered the bar on inventive step, on prior art, on industrial application, and on subject matter.

Judicial Independence

EPLA judges would be appointed and reappointed for fixed terms by the the EPO's Administrative Council. Fixed-term judges cannot be considered fully independent, which is why most countries appoint senior judges for life. Moreover, since the EPLA court judges can at the same time sit on the EPO's TBAs, the executive (EPO) will be partially in change of the judicial (EPLA court) functions, thus removing the "trias politica", the principles that would ensure separate and independent powers and areas of responsibility - in essence the normal checks and balances of modern democracy.

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