The patent industry's plans to circumvent EU legislative processes

Europe's complex mix of national and EU processes provide many ways to create new structures. EPLA depends on the EU signing up to the European Patent Convention. But who defines the road map to software patents? Surprise: it's the patent industry.

How to implement EPLA

Here is one scenario for implementing EPLA, explained in the German Intellectual-Property postil "GRUR" (10/2006), by Prof. Dr. Winfried Tilmann, lawyer:

  • First the European Patent Convention must be changed to allow the EU to join. Currently only states can join. This change can be made by an EPC conference.
  • Second, the European Community must join the EPC and EPLA.
  • Last, a subset of EPC states (at least eight) must press ahead through Closer co-operation.

When the EU has joined the EPLA, national courts could refer EPC questions to the ECJ. The ECJ interpretation would be immediately binding on all member states, and could not be overruled by an EU directive.

So, the question is how to "guide the ECJ" to make the proper decision.

The key is the Implementing Regulations of the EPC, which would bind the ECJ. Tilmann says, "the means of changing the Implementing Regulations must appear to users and practitioners of the European Patent System, still shocked by the debate around the Biotech- and Computersoftware-directives, the securest means."

The Implementing Regulations can be changed by the Administrative Council of the EPO (Art. 33 EPC). This body consists only of members of the patent system, usually from national patent offices.

From December 2007, when the new EPC 2000 treaty comes into effect, the Administrative Council would be able to change most of the EPC including Article 52, which today still excludes software from patentability.

Thanks to andreasr for this explanation which he originally published on

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