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Patent litigation treaty renews software patents battle

Fears of spiralling costs

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A new battle over software patents in Europe is set to begin this week as the European Commission begins hearings into the establishment of a new European Patent Court.

In 2002, the commission proposed a directive on computer-implemented inventions which critics feared would open the floodgates to software patents in Europe. After heated debate the European Parliament threw out the proposal last year.

Now, anti-software patent campaigners are opposing a proposal for an international treaty, the European Patent Litigation Agreement (EPLA), that would establish a new European Patent Court and, according to critics, endorse software patents.

Florian Mueller is a software developer who founded the NoSoftwarePatents campaign which lobbied against the 2002 proposal. He will speak at the European Commission's first public hearing into the latest matter on Wednesday.

"The EPLA is now the priority of the commission, the European Patents Office, some EU member states such as Germany, and the lobbying organisations of big industry," said Mueller, citing Microsoft and Nokia among its backers.

Mueller has made the text of his speech on Wednesday available. "The EPLA is just another attempt to give software and business method patents a stronger legal basis in Europe than they have now," he will argue. "From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had: not only would software patents become more enforceable in Europe but also would patent holders in general be encouraged to litigate."

The EPLA, drafted in 2004, proposes a new European Patent Court. "There is already a European Patent Office," said Mueller. "The EPLA would mirror the EPO's governance structure and create a new European Patent Judiciary (EPJ), an international organisation that would run a new European Patent Court (EPCt)."

Mueller fears that this could lead to a doubling or a tripling of the cost of patents in Europe.

When the commission conducted a consultation process, cost was one of the primary concerns, particularly of small and medium-sized companies. Another worry of larger companies in the software sector was that patents which are too broad in scope would be granted.

"The IT industry, represented by EICTA, identifies patent quality as a primary issue of concern," said the commission's preliminary findings document. "On one hand, patents must be rendered as incontestable as possible. This is not to be achieved by enlarging patentability criteria and a lax review system, but via a re-evaluation of the inventive step requirement through a quality control system and rigour in examination and prior art search."

While Mueller will be objecting strongly to the new proposals, he is confident that the proposal for a community-wide patent will not be ratified by the EU.

"The community patent isn't going to get the required unanimous support by the 25 EU member states anytime soon, and internal market commissioner McCreevy recently repeated that he won't introduce a new harmonisation directive during his mandate, which ends in 2009."

See:

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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