Here are some answers to the questions of the journalist, note that I did not touch on the subject of "Where is the European Parliament?" in the legislator section.

Q1: What particular element of the United Patent Litigation System (UPLS) proposal has initiated concern regarding software patents?

1. Centralisation

The United Patent Litigation System (UPLS) is heavily inspired from the European Patent Litigation Agreement (EPLA). They have a lot of similarities, inside the FFII we call the UPLS the EU-EPLA, which is the EPLA rebranded with a EU flag on top to make it look like an EU project.

The UPLS and EPLA have in common that they are both international treaties, and not EU regulation (directive, council framework decision, etc…) per se. It means that other countries that are non-EU (such as Turkey, Iceland or even the United States) could potentially join the treaty. The fact that it is not an EU piece of law means that the legislator won't be the European Parliament. As we saw with other international treaties such as ACTA, those treaties are typically negotiated behind closed doors, and the Parliaments (the European one or the nationals ones) typically do not have a say over their content. The UPLS is mainly a piece of legislation written by bureaucrats of the Commission and Government officials, with no input whatsoever from members of those parliaments.

The pro-software patent lobby, mainly represented by EICTA members (mainly Philips, Siemens, Alcatel, Nokia, Ericsson) or BSA (heavily driven by Microsoft) called members of the EPP party some days before the vote of failed software patent directive, asking them to vote for rejection, and push for a central patent court instead.

The divergence of opinions of several courts in Europe (mainly Germany and UK) was the argument the Commission used in 2002 to issue a directive proposal on the subject:

http://web.archive.org/web/20000818230031/www.freepatents.org/agree/images/pat1.png

With the elimination of different courts and creation of a central patent court for validity cases, the disparity of interpretations by different courts has been abolished.

This disparity is important, because it shows to the legislator where there is conflict of interpretation, and where the legislator should intervene to clarify.

2. Legislator

The problem with creating a international patent court between several countries is to balance it with a legislator, who would be competent to correct the behaviour of such court.

In the present state, the legislator would be the government officials signatory of the European Patent Convention, among which you find often that they belong to National Patent Offices.

This conflict of interests has been denounced during the strike of EPO examiners a while ago.

The influence of National Patent Office was also very important during the software patent directive in the Council, where the decision to support software patents was motly made by officials from National Patent Offices.

3. Trusted patent judges

Specialized patent judges have a tendency to favour the patentee, and in the case of the UPLS, they will be handpicked.

The main reason to avoid the creation of patent tribunals inside the ECJ legal system is to be able for the patent establishment to be able to handpick their judges.

Among the top patent judges in Europe, it is pretty easy to see which judges favour software patentability and which do not. The pro software patents will be a criteria for selecting judges. You can expect for example that the delegation of Germany will propose candidates that will favour a narrow and hair-stretched interpretation of the EPC, like the EPO technical board of appeal is doing with "software … as such", software is technical, further technical effect, and so on.

4. No judicial review by the ECJ

One of the main battle right now is the competence by the ECJ to review the behaviour of such court.

The UPLS is a seperate legal system from the EU legal system, and is not connected to it in any meaningfull way.

The US experience with specialized patent courts shows that those courts have interpreted the law broadly, they have notably lowered the threshold of obviousness, allowed software and business method patents, or granted automatic injunctions.

Rencently, the US Supreme Court is taking more and more case for review, in order to correct the abuse behaviour of such specialized patent courts. Such mecanism would not be available in the present draft of the UPLS. It is not surprising to hear that the patent establishment is heavily lobbying against it.

Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples

1. Higher total costs of litigation

The fact that a regional court can issue EU-wide injunctions to stop a potentially infringing product is quite a powerful instrument.

You can expect damages to be calculated in function of the size of the market, in this case the whole EU, plus other countries which will be part of the UPLS agreement.

This is basically what is happening in the United States, where district courts issue US-wide injunctions with US-wide damages.

The patent industry, when trying to justify the need for the UPLS, mostly never mention this.

EU-wide injunctions and damages will be an incentive for patent trolls to enforce their patents.

The other problem with the UPLS is the cost of the procedure. Right now, 90% of cases are not cross-border cases (in one country only), and the Commission and other UPLS proponents try to solve a problem encountered in 10% of cases.

The UPLS, with its system of specialized patent courts, and its international dimension, carries a high probability to raise the lawyer's fees for the majority of non-cross border disputes (90% of cases). Since the system will be fully specialized, patent lawyers will definitely raise their prices. This might be sensitive for Eastern countries, where the cost of litigation is pretty low, compared to western standards.

2. EU-wide injunctions to stop a software product

The main risk with such system is to have a very favourable regional court issuing quasi-automatic EU-wide injunctions in order to stop the diffusion of a suspected infringing product.

There has been recently a hearing in the European Parliament about the IPRED1 directive, where a french expert said french judges were now forced to issue injunctions in the case of "suspicion" of infringement, instead of "quasi-certainty" of infringement.

Right now, it is very complicated for a patentee to obtain an EU-wide injunction, because he has to go to every jurisdiction, and this has never happened up to now. The "lis pendens" mecanism has also provided that a court in one member state has to wait for the outcome of a case in another country if the same patent and the same facts are involved in a pending procedure.

A typical example is the RIM case in the US, where the Blackberry was very close to be wiped out of the US market with a US-wide injunction.

3. Out of court settlements for most of European players

There will be a strong pressure for most software players in Europe to bow to out-of court settlements. It can be expected that in most cases, the cost en entry to go to court will still be too high, especially for very small companies (1 to 10 employees), which represent the majority in the software sector.

The result of this will be the near obligation to sign unfavourable out-of-court settlements.

While large software companies has the means and the ability to defend themselves and go until the end of the court procedure, most of the european software players don't have the financial ressources nor the time to afford litigation in court. This is what we explained in the FFII's submission in July 2006 at the public hearing organised by the Commission on the consultation:

http://press.ffii.org/Press_releases/FFII_statement_given_at_EU_patent_policy_hearing

"[…] if you are an SME and accused of patent infringement, it becomes harder to defend yourself because litigation just became more expensive. And if you cannot defend yourself, you will be forced to license, even if the patent is weak or invalid."

4. Loss of legal certainty

It is merely impossible for software producers and users to know if the software they are producing/using/reusing is not infringing a patent. The whole software patent system makes the software development impossible, by creating a situation where producers and users are under a constant threat of being sued. It is not surprising to see that 85% of companies who were questionned in the issue in a survey in Germany fear that software patents might impede their work.

The copyright system provides a legal system where there are very few lawsuits, and when there might be infringement, those are most of time clear and sharp, and thus quickly resolved. This is the total opposite with software patents, since most of them are very broad and thus, which maximise the probability of infringement for the patentee.

Q3: Aside from the software patents element, what is your perspective on the UPLS as a whole?

I don't think it will fly. The main reasons are:

1. Location of the courts: member states don't agree for more then 30 years about where to locate the courts. The UPLS do not provide any indication where the courts will be located, and this is left out of the agreement because it is a too hot potato.

2. Lack of judicial review by the ECJ: I think several member states wants to see a judicial review by the ECJ, notably to avoid the risk of pro-patent courts that would not be "correctable" by a senior court. The US example is very telling about what the EU system would look like with the UPLS, without the fact that you would have a kind of US Supreme court to correct abusive behaviours.

3. Other legal problems, such as:
a. link with national constitutions: in most countries, parties have the right to appeal to a constitutional court, which won't be the case with UPLS cases; this is sensitive in the case where judges might be biaised in favour of one of the parties; you can think to the recent Piratebay case in Sweden where the judges are member of copyright lobby groups.
b. some constitutions of some member states require that the judge is of the nationality of such state: this is the case for France or Bulgaria for example.
c. languages: it is not given that citizens will be able to use their language to defend themselves.
d. impossibility for the EU to join the EPC: the amendments proposed by the Commission do not talk about how the EU (which is not a state as such) would have access to the International Court of Justice (which is only accessible to states member of the UN) in the Hague in case of disputes around the interpretation of the treaty.

Q4: What advantages and disadvantages can you foresee if the UPLS is implemented?

Advantages

1. EU-wide injunctions and damages for patent holders
2. EU-wide revocation of a patent for defendents
3. Possible invalidation of software patents EU-wide (not very likely, but possible)
4. High costs of litigation, good for the patentee to reach a deal out of court
5. Uniform caselaw developed for software and biotech patents
6. No diverging decisions over the same patent by multiple courts

Disadvantages

1. No real legislator to correct decisions of such international patent court
2. No divergence of decisions which might show to the legislator where to intervene
3. Possible validation of software patents EU-wide (very likely)
4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
5. More incentives for patentees to litigate and enforce their patents
6. Pro-patentee courts
7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
9. No judicial review to correct the eventual deviance of such specialized courts
10. Potential higher costs of litigation for the patent holder

The industry-based driving force behind the EPLA comes from the pro-software patent group as a way to ensuring that their software or potential software patents are fully enforceable across Europe.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention and won't be an EU institution. Those patent judges want to have the last word over European patent law."

Background

The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired by the now defunct European Patent Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software patents and substantive patent law. The centralised patent court won't be an EU institution.

The Court of Justice of the European Communities would only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, […] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community." The UPLS itself would not be a "institution of the Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.

On the other side of the Atlantic, specialized patent courts in the United States (CAFC) have watered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. The poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin drawing. The Supreme Court judges overturned the patent, heavily criticising the obviousness threshold of the specialized patent court: "This is gobbledygook. It really is, it's irrational. It's worse than meaningless."

Links

• Council: European And Community Patents Court Draft Agreement
• European Commission: Recommendation to the Council to authorise the Commission to open negotiations on a Unified Patent Litigation System
• European Commission: Next steps for creation of unified patent litigation system
• FFII EPLA WG: Hartmut Pilch's 2007 vision on EU-EPLA and software patents
• SSLUG: TBA -> EBA EPC 112!
• Forexpros: EU takes key step towards bloc-wide patent system
• FFII: Single EU patent law good for US giants, bad for small EU firms
• NoSoftwarePatents.com: Round 3
• Eupaco2: John Duffy: Optimal Centralization in Patent Institutions
• StopSoftwarePatents: "Council seeks to legalise software patents with the Community Patent" says French expert
• BMWI: Patente auf computerimplementierte Erfindungen
• FFII EPLA WG: The EPLA plan for software patents
• EuropeanVoice: Czechs call for unity on patent legislation
• Permanent link to this press release

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

I don't think EU joining EPC would automatically mean that ECJ can intervene on substantive patent law questions.

If there is a ECJ above the EPJ, then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself or maybe to the Commission, member states and the EP.

After the EPJ system is already burdensome enough for SMEs. It's not reasonable to demand that there should be a second court above the EPJ at the European level.

In the EU Trademark, the ECJ is in charge, and it is acting in fact like a central EU trademark court. There is no separate ETJ.

Even if patent jurisdiction was handled by an ECJ patent senate, that would still mean concentration of judicial power in one single point of failure and elimination of the needed corrective of diversity. At best, the ECJ might be a little bit more independent from the EPO world than the currently envisaged EPJ, but it would still be a specialist court consisting of patent professionals.

If the EU joins the EPC, there is still no possibility of revising the EPC by co-decision procedure. Legislative power is, on the contrary, firmly placed into the hands of the Commission and Council only, in that case, and any ECJ pronouncement on the EPC would also be less meaningful than an EPJ pronouncement, because only the EPJ can speak for all the contracting states of the EPC.

Harmut Pilch, 2 May 2007

Comme dans toute organisation polycéphale, l'incohérence est de mise. Par exemple, le Parlement avait voté contre la brevetabilité logicielle en 2005, avec le soutien d'une partie de la Commission (la direction de la Société de l'Information), et contre une autre partie de la Commission (la direction générale du Marché Intérieur dirigée par le commissaire Mac Creevy, très critiqué pour ses positions extrêmement favorables aux grands groupes privés) ainsi que le Conseil (dans lequel règnent les "experts" missionnés par les offices de brevets nationaux). En 2009, rien n'a changé. Le Conseil et une partie de la Commission cherchent à légaliser les brevets logiciels illégalement accordés par l'Office Européen des Brevets (une institution extra-communautaire hors de tout contrôle) au travers de la mise en œuvre du "brevet communautaire" et des règles de brevetabilité qui l'accompagneraient.

Translation in english:

Like in any polycephalic organisation, incoherence happens. For example, the Parliament has voted against the software patent directive in 2005, with the support of a part of the Commission (Directorate General Information Society), and against another part of the Commission (Directorate General Internal Market lead by Commissioner Mc Creevy, heavily criticised for his positions extremely favourable to large private groups) and the Council (in which rules the "experts" of National Patent Offices). In 2009, nothing has changed. The Council and a part of the Commission seeks to legalise software patents illegaly granted by the European Patent Office (an extra-community institution outside of any control) trough the implementation of the "Community Patent" and the substantive patent rules that goes with it.

The ultimate goal of this move is to create central caselaw on software patents by a specialized patent court in Europe. With the recent caselaw of Symbian using ambiguous terms like "technical", it is highly probable that patent judges in a central validity court won't scrap all the software patents illegaly granted by the EPO:

The Court of Appeal in UK has allowed a software patent, possibly setting an important legal precedent. Last week's decision by the Court of Appeal has upheld a previous decision by the High Court that the Intellectual Property Office or IPO's refusal of a patent application by Symbian was not correct in law. The application was for a patent for an indexing system for library functions in an operating system. Accordingly, in considering the "technical effect" of the invention by smartphone OS vendor Symbian, the patent examiner had displayed an excessively "narrow" point of view. The Court of Appeal, under the leadership of Lord Justice Sir Robin Jacob, has thus wished to minimise somewhat the differences due to the so-called "absurd" discrepancies between the IPO and the EPO – the European Patent Office (EPO). The Court also wants to harmonise patenting practice in England and Wales with that on the Continent.

Experts at the European Commission are already saying that the link between this central patent court and the ECJ is important for groups like FFII to have hope in having the caselaw of this future court reviewed by an independent court. There were also proposals in the register of documents in the Council to make the Court of First Instance of the ECJ also specialized in patent law. Mr Judge Jacob is also a very good candidate to be part of the Central Patent Court, he is foreseen as the driver of the bus where all the other specialized patent judges in Europe will sit.

Mr Hartmut Pilch has already said after the rejection of the software patent directive, which was requested by EICTA and other pro-software patent lobby, that the debate will move to the Community Patent:

Question: Does the Community Patent restart the debate over patents for computer-implemented inventions (software patents)? Why or why not?

Answer: Pilch: It restarts the push for software patents, without a debate.[…] The Community Patent plan doesn't even mention the subject of software, although, make no mistake about it, software patentability is one of the main drivers of these plans.

A press article issued by Out-law just after the rejection of the directive also mentions the Community Patent as the next vehicule to validate software patents:

According to the Parliament, the Community Patent has been mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.

Just4Business reports:

“Europe’s 500“, which is an association of those European companies with the biggest growth, calls on the EU Commission and the EU member states to introduce a simplified and centralized European patent application procedure. Currently inventors have to pass through 27 different patenting procedures and have to fill in blanks in many languages according to EU member state so that applying for a patent may cost up to 150.000 Euros.

And when we take a look at Europe 500's sponsors page, who do we find at the top?

Here is the first question to the Commission:

Parliamentary questions
15 January 2008
E-6650/07
WRITTEN QUESTION by Marco Cappato (ALDE) to the Commission

Subject: Patent quality debate

The ‘Putting knowledge into practice’ report (INI/2006/2274) adopted by Parliament in May 2007 ‘calls on the Commission and the Member States to propose, in the context of the new Community patent, a procedure for eliminating trivial patents and sleeping patents’.

1. Is the Commission aware of any criteria and instruments to measure patent quality beyond the general requirements regarding ‘inventive step’ and ‘novelty’?

2. What steps is the Commission attempting to take in order satisfy the request for patent quality promotion?

Here is the answer from the Commission (available in proprietary Microsoft Word format):

E-6650/07EN
Answer given by Mr McCreevy
on behalf of the Commission
(18.2.2008)

The Commission believes that high quality patent rights that fulfil the legal requirements are an essential element of a well-functioning patent system. The notion of patent quality can be considered from a number of different perspectives covering individual granted patent rights and also
the objective of the system as a whole to encourage innovation. This makes quality difficult to measure. However, in the replies to the 2006 Commission's consultation on future patent policy in Europe, respondents stressed the importance of rigorous examination, prior art search and strict application of patentability criteria to ensure high quality patents[1].

The Commission addressed patent quality in the Communication "Enhancing the patent system in Europe"[2] and will further develop the issue in the forthcoming Communication on industrial property rights strategy which is expected in 2008.

[1] Further information on the Commission's patent consultation can be found at http://ec.europa.eu/internal_market/indprop/patent/consultation_en.htm
[2] COM(2007)165 final

Similar question to the Council:

Parliamentary questions
15 January 2008
E-6649/07
WRITTEN QUESTION by Marco Cappato (ALDE) to the Council

Subject: Patent quality debate

The ‘Putting knowledge into practice’ report (INI/2006/2274) adopted by Parliament in May 2007 ‘calls on the Commission and the Member States to propose, in the context of the new Community patent, a procedure for eliminating trivial patents and sleeping patents’. And a resolution on European future patent policy of 12 October 2006 (P6_TA(2006)0416) sets a clear agenda for upcoming talks about a patent judiciary: ‘that the proposed text [for a European Patent Court] needs significant improvements, which address concerns about democratic control, judicial independence and litigation costs,’ and demands ‘that all legislative proposals should be accompanied by an in-depth impact analysis related to patent quality, governance of the patent system, judicial independence and litigation costs.’

1. Is the Council aware of any criteria and instruments to measure patent quality beyond the general dogmatic requirements regarding inventive step and novelty?

2. What steps is the Council attempting to take in order to address the demands of Parliament in the current discussion on an EU‑EPLA and a Community patent?

Answer from the answer from the Council (available in proprietary Microsoft Word format):

E-6649/07
Reply
(18 February 2008)

1. The Council fully shares the European Parliament's wish for a high-quality Community patent system. Work is still going on in this field within the Council's preparatory bodies, and the Council has not yet finalised its thinking as to what criteria and instruments would be appropriate for such quality measurement. In this context, the Council wishes to remind the Honourable Member of the Council's commitment to re-consult the European Parliament once a text concerning the Community patent has reached a sufficient degree of maturity within the Council.

2. The Council assures the Honourable Member that, in its discussions regarding the establishment of an EU patent system, it has always taken and will continue to take duly into account the views expressed by the European Parliament, as set out in particular in the 2006 resolution and the 2007 report referred to by the Honourable Member in his written question.

The National Patent Offices who are populating the Working Group on Patents of the Council have really few things to say about patent quality.

The confusing case of software patents in the UK gets more confusing

[…]

Earlier this week, the Slovenian Economy Minister (remember, Slovenia now holds the presidency of the EU) made a speech to the European Parliament in which he spoke of the emphasis his country was placing on finding a way to introduce a single European patent jurisdiction; so building on the progress made during the previous Portuguese presidency. The current situation shows why such talks are necessary – a central European patent court will help bring the certainty that, in a number of areas such as software and biotechnology, we currently do not have. Maybe such a court will be very restrictive in its view of patent protection for computer programs, but that surely has to be better than the mess we have at the moment. At least everyone will then now where they stand.

Joff Wild, IAM Magazine | 26 Jan 2008

Imagine a freaky judge at a central patent court adopting the same decision as the english judge Kitchin has made recently, and you get software patents validated Europe wide.

European Patent Forum and European Inventor of the Year 2008

On 6 and 7 May 2008, the European Patent Forum and the European Inventor of the Year will take place in Ljubljana. The event will be co-organised by the European Patent Office, the government of Slovenia, the Slovenian Intellectual Property Office and the European Commission. Slovenia will hold the EU Council Presidency in the first half of 2008.

Please take note of this date.

European Patent Forum
European Inventor of the Year
Grand Hotel Union, Ljubljana

The programme of events will be available at the start of 2008.

And of course, the EPO decides the agenda of the conference.

The consultation attracted about 2500 responses from stakeholders, many of whom are SMEs. It left no doubt as to the urgent need for action to provide a simple, cost-effective and high-quality patent system.

You will find the same rhetoric in the Commission's documents of last week:

The difficulties in making progress on patents and especially on the creation of a Community patent led the Commission to launch, in 2006, a broad consultation of all interested parties on the future patent system. The results leave no doubt on the urgent need for action to provide a simple, cost-effective and high-quality patent system in Europe.

The Communication is intended to draw operational conclusions from the stakeholder consultation and to allow the Council to launch deliberations on patent reforms, in particular on the Community patent and jurisdictional arrangements. It addresses various supporting measures for an improved patent system, such as patent quality, knowledge transfer and enforcement issues. Ministers will discuss the progress report on the Communication.

Apparently, the Commission did not received the "Worst Privilege Access 2006" award yet in its postal box:

DG Internal Market wins award for "worst privileged access"

The lobby-scrutiners group also presented a second award, that for the “worst priviledged access.” This went to the Directorate General Internal Market of the European Commission for its role in EU plans to create a single European patent system.

“This powerful European Commission department manipulated its stakeholder consultation process to legitimise its own controversial proposal for a single European patent system by marginalising critics from a large number of small and medium-sized enterprises,” the group said.

The Commission statement about "many of whom are SMEs" is coming from the difficulty for the Commission to have enough SMEs in the results before the deadline of 12 April 2006, forcing them to hunt for SMEs to get useful results:

Brussels, 10 July 2006. The Commission made an undercover move to get more "useful" answers following the 12 April closing date of its Patent Policy consultation. It sought out small firms across Europe who had used the patent system. It then provided these firms with new documentation and specialist assistance to help them write individual answers. None of the firms answering the online consultation got this help. But when the software firms in this new group came to the same conclusions as the FFII, the Commission concluded that these firms were "lacking knowledge about the patent system".

Here is also what the Commission have answered to another parliamentary question of Eva Lichtenberger MEP (in french only, the answer has not been translated):

À cet égard, la consultation menée par la Direction générale Marché intérieur et services (DG Markt) sur la future politique des brevets en Europe n'est en aucun cas distincte de celle menée par le biais du "SME Panel".

Which gives in english:

To this regard, the consultation lead by General Directorate Internal Market and Services (DG Markt) on the future of patent policy in Europe is in any case distinct to the one lead by the mean of the "SME Panel".

What does the Commission do with the following documents (Community patent - the current proposal and Documentation about the EPLA, or Documentation about the EPO) which were not distributed during the public consultation?

Where are the contributions to the public consultation available online?

The best quote is perhaps from CAFC judge Randall Rader, who says:

The experience of the CAFC is a very positive one, and it’s being imitated everywhere in the world, including Japan, China and Europe. I’m now selling it back to you. Our success experience should be a source of inspiration for the EPLA court.

This is the same CAFC that the Supreme Court of the US slapped down for granting trivial patents. From the point of view of the patent industry, CAFC was indeed a fantastic success. And EPLA would be even better… no SCOTUS to slap down an EPLA court run by the EPO.