Brussels, 10 July 2006. In leaked documents the Commission criticises the European Patent Office (EPO) as a “business culture of its own” that considers EU interferences in patent law “as an attack on the holy writ”. The Commission also raises concerns that the EPO is “assuming a policy role which does not belong to it”. These remarks, which echo long-running concerns raised by the FFII, contrast sharply with Commissioner McCreevy’s promotion of the European Patent Litigation Agreement (EPLA), which would hand the EPO even more power.
The Commission’s acidic comments appear in documents provided to SMEs whom it selected to take part in a behind-the-scenes second round of its consultation on Patent Policy. After a standard overview of the EPO, the Commission writes that the EPO “has a business culture of its own with very little understanding for what happens in Brussels in a more global context.” It continues, “The EPO has close ties with national patent offices and far less with the ministerial level in Member States. Recently the EPO has become subject to growing criticism by MEPs and various EU Member States for a lack of political accountability.”
These highly unusual comments show that not all Commission DG’s are as happy with the EPO’s performance as DG Internal Market. FFII board member Jonas Maebe says “We have warned many times about the dangers of an unaccountable and over-ambitious EPO. Not only has the EPO changed its own rules to allow software and business method patents, it became actively involved in EU politics last year when it spent huge amounts of money to lobby the European Parliament in favour of the software patents directive.”
Meanwhile, the Commission has presented the European Patent Litigation Agreement (EPLA) as a way to optimize the European patent system. Yet the EPLA would put the same people who now run the EPO in charge of choosing judges for the new centralised European Patent Court. And while acting as judges, these individuals would also be allowed to work for the EPO.
Maebe compares this to an environmental agency that sells pollution permits and simultaneously appoints judges who create more relaxed case law. “The EPO is an out-of-control bureaucracy which the Commission now basically accuses of acting like a for-profit enterprise. With the EPLA, every remaining check and balance will be removed. Even the EPO-appointed judges would have fixed six-year terms, so if they become too independent, they will be replaced.”
Erik Josefsson, FFII Brussels representative says: “I was not surprised to meet Ericsson, Nokia and SAP in the corridors of the European Parliament last year, but I was quite surprised to meet EPO officials there. Now MEPs have confirmed that even a judge of a first instance court was lobbying for the software patents directive last year. If the EP ever gets seriously involved in the EPLA talks, I wonder what that campaign will look like…”
The European Commission is formed by several Directorate-Generals (DGs), each with their own competence. The Commission patent consultation was organised by DG Internal Market (DG MARKT). However the SME Panel infrastructure, which was used for the SME poll after the closure of the consultation, belongs to DG Enterprise and industry (DG ENTR). The documentation provided to the SMEs also seems to have been written by this same DG ENTR since the invitation to the EICs, which carried out this sub-consultation, was signed by a representative of DG ENTR.
During the software patent directive procedure, a representative from DG Information Society (DG INFSO) admitted to be not necessarily agreeing with DG MARKT’s insistence either. It remains to be seen whether in the future other competent DGs will be able to influence patent policy more than in the past.
Commission organises closed second round of SME patent consultation
Commission documents from second round of SME patent consutlation
DG INFSO not in favour of software patents directive (last paragraph)
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About the FFII
The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.