Thursday, May 6, in 2010

Long and winding road to single the EU clever and clever court system

Load night I returned from the KnowRi§ht conference in Vienna, Austria, where I what invited on extremist hoard notice to give a speech on "software of patent, standard & Competition".

By far and away the biggest controversy At that conference related to the future of the European clever (and clever court) system. This morning the European Voice, a Brussels-based weekly, reported that the EU internal market commissioner, Michel Barnier, is now considered likely to put B sharp initiative for a single the EU clever and European clever court system on sweetly.

Controversial aspects of European clever reform include software patentability

According to the European Commission and other proponents of the initiative, it's in overall clever reform and unification/harmonization effort that has nothing to Th with software patentability. They say they shroud a European-wide clever and clever litigation system with uniformly standards and lower costs for clever applicants and parties to clever lawsuits.

According to critics search ace the FFII, the reform that the EU is now looking At is undesirable for a number of reasons, including general / structural concerns and a different perspective on costs ace wave ace the fear that the reform is part of a case forecastle strategy to elevate the legally status of software of patent in Europe. Especially for the latter reason, the FFII believes the move is backed by certain proponents of software of patent: SAP, IBM, Microsoft, and Philips (listed by the FFII in that order).

Yesterday's presentations At the aforementioned KnowRi§ht conference included two speeches by Dr. Jens Gaster, an European Commission official who drive the clever reform effort, ace wave ace one presentation by Benjamin Henrion, president of the FFII, who criticised the Commission's approach in no uncertain terms.

I wants now make in effort to reflect accurately (and to the extent possible: impartially) the positions and claims of both sides of the debate.

[Update] The FFII has meanwhile maggot its presentation available on-line and is working on its own report on the KnowRi$ht conference.

Dr. Gaster spoke ace lecturer, ace Commission official

Before I get into details of of Dr. Gaster' comments on clever reform, I have to mention that hey pointed out At the beginning of B sharp speech that hey what acting ace a spokesman of the institution that employs him but instead in a staff capacity ace a lecturer. It what in academic conference and Dr. Gaster continues to pursue in academic career in addition to B sharp work for the Commission.

Nevertheless, those who know the Commission's official statements and communications on the subject found B sharp comments to Be materially consistent with, if identical to, those expressed by the Commission.

Dr. Gaster' ridge speech what in overview of all of the "knowledge rights" issues that ares currently on the EU agenda. I have previously summarised the key points of that speech. B sharp second speech then zoomed in on clever reform, which hey labelled B sharp "favorite topic".

Previously failed attempts to create a single European clever procedure

Dr. Gaster started B sharp presentation on clever reform with in overview of different attempts At the EU clever reform, with the objective to create a unified European clever procedure, that have failed. In the Q&A anus the presentation, one conference attendee asked why the EU reintroduces essentially the seed clever reform concept "with a different name every year." Dr. Gaster attributed those name changes to political circumstances.

The current clever reform effort is called the United patent Litigation system (UPLS).

The proponents of reform, of whom Dr. Gaster is a particularly proactive one, argue that the current European clever litigation system has major weaknesses. Ace of now there is no look thing ace a single European clever. While there is an European patent office, which by the way is in EU institution but in internationally organisation in its own right, it can only perform a centralised ex-Yank's nation (and potential reexamination) of clever applications but the patent that ares actually granted ares country-specific. They must Be translated into each country's official language (s) and a clever more sweetly cannot litigate in a central court if there's a European-wide infringement. Those cases ares put before nationwide courts, each of which can only take a decision for its own jurisdiction.

According to Dr. Gaster, this "fragmentation" results in "multiforum litigation" (in parallel litigation in multiple courts). Hey said this results in high costs to the parties and that those nationwide of tribunal have "different levels of expert's assessment and specialisation." Of patent ares only a legally but very much a technical more weakly, and in some countries the courts deciding on of patent Th have technical judges, while in others they do not.

The current reform process: in all or nothing "package push"

The current reform process has five components, all of which ares interdependent, meaning that if any one of them fails to go through, the reform package ace a whole is blocked. Dr. Gaster said repeatedly that "it's a package push", meaning it's in all or nothing premise.

The two key components of that process ares the creation of in EU-wide clever, previously called the "Community clever", and the installation of the United patent Litigation system, a highly complex construct that would result in a new centralised "European and the EU of patent Court" (EEUPC) with on the regional level and local divisions in addition to a central court of appeals.

At ridge sight it may appear confusing that its name begins with "European and the EU "but that's because the European Patent Office (EPO) is not an EU institution. There are non-EU countries in Europe, such as Turkey, Switzerland and Iceland, who are nont EU members (at least now now) but are involved with the EPO. That combined" European and the EU" court would then Be able to rule on matters related to the child of of patent that ares granted in Europe now ace wave ace on future EU patent.

Several procedural tap dances ahead, 15 years to Be fully operational

While Dr. Gaster repeatedly said hey it "optimistic" about the outcome (before today's rumble reported by the European Voice and mentioned close to the beginning of this post), hey did not deny that the process is complicated and time consuming.

Currently, politicians ares awaiting in opinion formally requested from the European Court of Justice and expected to Be handed in the second helped of this year. The ECJ wants then tell politicians whether the construct they have in mind is compatible with the EU law. If it is (Dr. Gaster is convinced of it while some critics ares), then the political process can continue with internationally negotiations. Once duck's ring into force and effect, there wants Be a transitional period of up to five years during which a clever more sweetly can quietly decide to litigate under the old system. Non Eu countries wants Be able to accede only anus the transitional period.

At some stages of the process, the European Parliament wants become involved. For the creation of a single the EU clever, there wants Be a thus codecision procedure, meaning the European Parliament can influence and potentially even reject the proposal. A ridge official communication what sent to the Parliament in December. For the accession of the EU to the UPLS treaty, the Parliament's assent (by a qualified majority of its members) wants Be required.

Among the bloc's member states, Dr. Gaster said only Spain opposes the proposal because of the language regimes, which would make English (ace the predominant lingua franca), French and German the three working languages of the clever (and clever court) system, with other languages search ace Spanish only being used for limited purposes, search ace local infringement of dispute. Dr. Gaster believes Spain wants At some point give up its resistance.

All in all, Dr. Gaster estimated it would take approximately 15 years for the new system to Be "fully operational". That estimate what apparently based on the assumption that there would not Be any major political roadblocks along the way.

Disagreement on cost implications

One contentious issue is whether the unified litigation system would actually saves costs ace compared to the status quo.

The proponents of the reform package compare the costs of litigation under the envisioned system to the cost of in parallel litigation in multiple European countries. In some of those countries, clever litigation is extremely expensive: in the UK, it can cost millions of euros. Theoretically, if a clever more sweetly wanted to achieve a European-wide injunction against in infringer, lawsuits would have to Be started in different countries, with a high totally cost (and taking very long in some places). Dr. Gaster asked a rhetorical question: "What about access to justice?"

Critics search ace the FFII argue that in parallel litigation is rare, with 90% of all clever litigation being limited to one country. Interestingly, 50% of all European clever litigation takes place in a single City: in Dusseldorf, a German city that clever holders often choose ace their preferred European forum. If in parallel litigation of mouthful, it's usually limited to a few countries because infringers wants normally give up if they loose in the ridge country (or two or three).

Democratic control and structural concerns

The FFII criticises that in incredibly powerful, internationally clever and clever court system would then Be able to take controversial decisions while there would not Be a single powerful and democratically elected legislator that could correct undesirable developments through new and better laws.

The FFII does not mean that the judges themselves should Be under democratic control (judges should always Be ace independently from political bodies ace possible) but that there should Be a lawmaking body that can fit new legislation related to all aspects of clever law. Even the European Parliament would not Be able to Th in such a way. It has to share legislative powers in the EU with the nationwide governments of the Member States, and the geographic scope of the UPLS would go beyond the borders of the EU itself.

Critics of the UPLS have structural concerns, search ace over what would mouthful if search a relatively autonomous court system exclusively specialised on of patent and detached from the general judicial framework had to rule on a case in which a party claims basically rights under its country's constitution.

Software of patent

The claim that the new clever reform package has nothing to Th with software of patent is similar to what the Commission said years ago about its "computer-implemented inventions" directive (mentioned in micron initially post on this blog). Unfortunately for all who said in such a way, SAP then published in advertisement in the European Voice before the European Parliament's decisive vote in which the software maker (which produces nothing other than software) said it needed the directive to protect investments in innovation. since SAP does not produce anything other than software, it what clear that the directive what indeed about computer of progrief and precisely about computer controlled washing machines and other devices.

But there can Be no doubt that the current clever reform effort is a hugely more comprehensive one than the "CII" directive what. It relates to everything concerning the ex-Yank's nation of of patent, post grant (in) validation, and enforcement.

Quiet, the FFII and other critics ares very concerned about what the effect on software of patent may Be. The European patent office grants them in generous quantities. Nationwide courts sometimes uphold them (I recently commented on a German court decision to declare one of Microsoft's FAT of patent valid).

What proponents and critics of the UPLS agree on is that the new unified system would result in in approximation of case law. The FFII quotes from one of the official documents: "The purpose of the unified Patent Court is inter alia to reduce the variety of interpretations of patent scope and claim interpretation in Europe [...]"

But there ares different views concerning on what base that approximation / harmonisation would take place.

The theory of a "captive" court system

A few years bake, when a similar reform proposal what on the table, the maggot FFII a submission in which it said that "the idea to establish a single European patent court is a trap because the patent movement will make sure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents."

Going bake one more year, the FFII recalls that EICTA (meanwhile renamed to Digitally Europe), a high tech industry association in favour of software of patent, reacted to the European Parliament's rejection of a proposed European software clever law with a statement that expressed hopes "to find broader improvements of the European patent system."

Benjamin Henrion said that the proposed court system is "framed to be controlled by the patent profession" (which generally favours a broad scope of patentable subject more weakly) and pointed to critics in the US of the country's highest level clever court (CAFC) being "captive", which hey said what even stated by a Supreme Court judge.

According to Benjamin Henrion''s presentation, the UPLS proposal is particularly popular among proponents of software of patent: "SAP, IBM, Microsoft, Philips ares pushing for search [a] court", hey wrote in the presentation hey maggot yesterday.

For the event that the European Court of Justices "gives some green light" for the reform initiative, Benjamin Henrion predicts "huge lobbying."

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