FFII UK

The EPLA: What’s Happening and What You Can Do

October 5th, 2006

Harmut Pilch has a full summary of the EPLA situation but here are the key excerpts:

Background

The draft European Patent Litigation agreement of 2004 has accumulated strong momentum thanks to support from the European Patent Office (EPO), the patent departments of large companies (= “industry”), the patent officials of the national ministries (= “the member states”) and by the European Commission’s Directorate General of the Internal Market under Commissioner Charlie McCreevy. EPO president Alain Pompidou says the text of the agreement is ready for rubberstamping by the national parliaments. Some national parliaments, such as Germany’s lower chamber (Bundesrat), have already done so. Input from the European Parliament is required only to a very limited extent.

Yet the spearheads of the patent establishment in the European Parliament, MEP Klaus-Heiner Lehne (EPP, DE) and Sharon Bowles of (ALDE, UK), both legal professionals involved in the patent litigation business, have tried hard to push their groups, which together form a majority, into supporting a motion which gives uncritical backing to the EPLA and to the plans of Commissioner Charlie McCreevy.

The socialist, green, left and and eurosceptic parties have filed motions which strongly criticise the EPLA, thereby triggering nervous reactions from Lehne, including a press release in which he calls his adversaries “diehard anti-innovation MEPs”. During the Strasburg session week of late September, the Lehne-Bowles proposal was cut down from 17 to 3 articles which again came under pressure from within their group. Helpful amendment proposals received support among many MEPs in these groups.

Immediate Situation

However, an unexpected turn came on the 3rd of October, when the socialist group, in view of the possibility that Lehne might still achieve a majority for a bad resolution, gave up its strong position and entered a compromise that prevents the worst. According to this compromise resolution, the parliament basically supports the EPLA and asks for the EU to “join the EPC”, but calls for “significant improvements” to the current EPLA text. Meanwhile, efforts are going on to improve this position by tabling amendments, which would turn the current weak green light into a weak red light.

As things stand now, on thursday, October 12, the European Parliament will vote on three different proposals for a resolution on this subject (at a mini-plenary in Brussels), of which the EPP-ALDE-PSE proposal is set to win with a high margin. The deadline for filing new motions is over. However, amendments to existing motions can be filed until Monday, October 9 (the week of the vote) by either party groups or trans-partisan groups of at least 37 MEPs, and some very helpful amendments indeed have chances of being filed next monday and of receiving majority support next thursday.

What you can do

For the last few weeks, the FFII has maintained a continuous relatively strong presence in the European Parliament. There were always at least 2, sometimes more, activists working in the Parliament to support EPLA-critical efforts. You can contact the team by writing to europarl-help [at] ffii [dot] org.

If you can afford to spend a few hours of your time, please find out at http://www.europarl.europa.eu who your MEP is and send her a polite and concise mail where you inquire about the current situation and ask whether she would be willing to meet you or someone from the FFII team to explore the possibility of supporting the current trans-partisan amendment effort. There is a sample fax about the EPLA motion which you can use if you wish.

If you’re from the UK and are going to contact (have contacted) your MEP please notify uk-help mailing list so that we make sure we don’t badger the same overworked MEP twice.

Main Talking Points

1. The EPLA would raise the costs of most patent lawsuits over the status quo, which disadvantages SMEs. For a small to medium-scale litigation, the overall costs will amount to EUR 97,000 to EUR 415,000 according to EPO estimates (and the EPO is pro-EPLA, so the actual numbers may well be much higher). Some SMEs who hold patents would not be able to afford to enforce them, and SMEs who are threatened with patent litigation wouldn’t be able to defend themselves. The current system of country-by-country litigation may not seem perfect, but it’s much more affordable to SMEs than the present proposal for the EPLA.

1a. The EPLA makes patent lawsuits prohibitively expensive for those who publish software on the internet. An Irish programmer could be sued in Cyprus, because the alleged infringement takes place everywhere where the Internet is, including Cyprus, and EPLA says that the lawsuit can be brought to a court at the location of infringment.

1. It’s a question of judicial independence: Lehne-Bowles propose to create a new court system that would be under the control of the same people who also govern the European Patent Office (ministry officials in charge of patent policy), while the alternative motion emphasizes the need to put the EPO under independent judicial control.

2. If judicial independence is compromised as proposed, software patents will become legally enforceable in Europe on a large scale. The way the EPO decides is known because of the EPO’s Boards of Appeals’ decisions; if you take more or less the same material and a very similar construction plan and build a machine, what comes out at the bottom of the machine is more or less the same. And the way the ministry officials in charge of the EPO (who would also be in charge of the EPLA court) like to define patent policy is known because they worked out the EU Council’s proposed software patent directive, which the EP then rejected. The EPLA is all about replicating the EPO structures.

3. The EPLA would strengthen the EPO system at the expense of the EU. The EU would probably become involved in some fashion, but it would be better for the EU to wait until the time is ripe for a true Community patent.

4. It’s about democracy itself. The EPO system is undemocratic and operates without parliamentary control. That’s why it should not be strengthened (or replicated) in its present form. Also, the draft EPLA would give ministry officials legislative authority on the rules of procedure, but in every country in the civilized world, the procedural code for the courts is defined by lawmakers (i.e., parliaments).

5. By supporting the Lehne-Bowles motion, the EP would support commissioner McCreevy’s new patent initiative almost unconditionally (and undeliberately), while the alternative motion voices constructive criticism and positions the Parliament for future debates on the right course of action.

6. Some major companies have even expressed various reservations concerning the proposed EPLA. Nokia, which holds more than 10,000 patents of its own, has said that the EPLA is too much in favor of certain patent holders and jeopardizes innovation.

Entry Filed under: News, Software Patents, FFII (General)