FFII statement given at EU patent policy hearing

Brussels, 12 July 2006. The FFII today asks in its speech at the EU patent policy hearing for addressing the European patent problems at the core: the malpractice of the European Patent Office (EPO). The FFII is particularly concerned about how the proposed European Patent Litigation Agreement would put the only future European patent court under EPO control. In the US, a single centralised patent court led to the proliferation of software and business method patents. Europe must not make the same mistake.

Honourable Chair, Ladies and Gentlemen,

The FFII represents 3,500 IT companies and 100,000 IT individuals. I will speak on behalf of the FFII constituency.

As has been said by other speakers, the EPLA will make litigation 2-3 times more expensive. Numbers come from the EPO.

What does this mean for SMEs?

It means that if you are an SME and have a patent, it will become harder to enforce your patent because litigation just became 2-3 times more expensive. It also means that 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.

Granted patents that are invalid are a plague, yet 50% of all patent litigation concerns patent validity. That means every second trial relates to a problem that should not be there in the first place. Every second patent trial is a trial which could be 100% cheaper for all parties involved if the organisation responsible for the granting of patents would have taken it’s full responsibility, but also if these patents would never have been filed.

Patent inflation is not a victimless crime. The victims are SMEs, even more so if litigation becomes 2-3 times more expensive.

But instead of fighting patent inflation and work on the problems at the EPO, we are now focussing on litigation.

Why is that so?

Maybe the answer lies close to what the Commission recently said in the Extended Consultation documentation, where the Commission strongly criticised the European Patent Office over attempting to define European patent policy. I quote:

  • “Whilst being basically a patent granting office, the EPO has ambitions to steer patent policy at European and international levels. It has a business culture of its own with very little understanding for what happens in Brussels in a more global context. Initiatives from Brussels implying changes to the existing multilateral European patent system are considered as an attack on the holy writ. 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.”

End quote.

Now, if lack of political accountability is considered a problem, why give EPO even more power? The EPLA would remove all national patent courts and put a single European-wide court in its place. However, the judges of this European-wide court would be appointed by the people who run the European Patent Office. Moreover, these judges could hold positions at the European Patent Office in parallel. Further, every six years these judges can be re-appointed if they live up to the expectations of, again, the very same people who run the European Patent Office.

EPLA puts an executive organisation in charge of running the judiciary. This is unacceptable. Tax offices, city planning departments and social assistance offices do not re-appoint judges deciding over their work, and there is no reason why a patent office should be exempted from this rule.

An executive must not control the judiciary. The Commission, if anyone, must know that. Why this extremism?

Petty differences between EPO and national interpretation and patent practice need not EPLA to be resolved. European judges can themselves find out if e.g. the special term “edible fruit” is disclosing prior art compared to the general term “vegetables”. But the more serious, EPO also thinks programs for computers are inventions, even if EPC and its national implementations say that they are not. This is a fundamental difference.

It has been said the centralised US court “Court of Appeals for the Federal Circuit” was the driving force behind the introduction of software and business method patents in the US. Maybe this is the most important reason why EPO needs EPLA, but is it what Europe needs?

The answer from the European Parliament last year was No.

Thank you.


Contact Information

Erik Josefsson
FFII representative
ehj at ffii.org

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at ffii.org

Jonas Maebe
FFII board member
jmaebe at ffii.org

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.

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