Brussels, 17 March 2009 — At the highest level of the European Patent Office (EPO), the legality of software patents in Europe is about to be tested. The FFII warns that the European Parliament is being bypassed by allowing a decision with EU-wide implications to be made without its involvement or any real debate.
The President of the European Patent Office (EPO), Alison Brimelow, has asked the Enlarged Board of Appeal (EBA) to decide on the interpretation of the European Patent Convention (EPC) regarding the exclusion of software from patentability. The EBA is replacing the European Parliament in order to validate software patents EU-wide without the need of a debate.
Benjamin Henrion, President of the association, says: “The current plan of the patent lobby is very clear: avoid a new software patent directive, validate the EPO practice via a central patent court, and guide the hand of the courts via a decision of the Enlarged Board of Appeal. They want to avoid the intervention of the European Parliament in substantive patent law.”
The European Parliament has already criticized the lack of separation of powers within the EPO in its resolution of March 2000 on human cloning:
“Considering that the EPO is an institution acting as judge and party, where the attributions and procedures have to be revised. […] Demand the revision of rules of function of the EPO in order to guarantee that this institution can publicly justify the accountability in the exercise of its functions […].”
Influential persons such Alfons Schäfers, German lawyer and President of GRUR, were pointing at the lack of democratic control over the EPO and was calling for a return within the EU legal framework:
“The EPO should become part of the European Union, like the OHIM in Alicante. To keep the EPO outside that framework is quite ridiculous at a time when the EU is expanding to the political and historical boundaries of Europe. The EU institutions – especially the European Parliament, must be given the wherewithal to exercise firm democratic control and to frame and implement European patent legislation. That is the only way to overcome the European Parliament’s growing suspicion of patent law.”
Henrion finishes: “What the EPO is doing is taking the place of the Parliament and skip the debate. The objective of this move is to guide the hand of the judges in order to achieve validation of software patents without a new law.”
Interested parties have up to the last day of April to send their comments to the Enlarged Board of Appeal.
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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.