25 September 2010

Latest Positions from Patent Judges' Symposium, EPO, EU Authorities, and AIPPI on Language Regime and Legal Compatibility of EEUPC

Sponsored by the European Patent Office, a pan-European group of patent judges and selected political guests meets biannually for discussing political an legal patent issues on a European scale. Now the 15th Symposium of European Patent Judges was held from 15 to 17 September 2010 in Lisbon (see list of participants).

The European Patent Judges' Symposium appears to be a rather exclusive corporation since, besides an official press release on the EPO website and today's posting on the usually very well informed ipeg blog, no substantive information on the meeting seems to be available throughout the whole internet. Patent judges do not appear to blog or tweet from their events. At least, the EPO announced that proceedings of the Symposium will be published as a special edition of the Official Journal in early 2011.

According to what is available, the main issue of the meeting was the proposal of the EU Council for a European Patent and European Patent Court. Further sessions related to the draft rules of procedure for a future European patent court (which may also include the judges' position on the controversally discussed regulation of representation before the new court), the exclusion of patent protection for surgical, diagnostic and therapeutical methods, and the protection of computer-implemented inventions in the US and under the EPC.

The EU Council's Draft Agreement on a European Patent and European and EU Patent Court (EEUPC) of 23 March 2009 (Doc 9076/09) has, due to a request for an opinion, recently being assessed by the Advocates General (AG) of the Court of Justice of the European Union (CJEU). The Advocates General concluded in their statement of position that the draft agreement in its current form is incompatible with EU treaties, especially regarding the judical control of the future EEUPC and the proposed language regime for the EU patent. The patent judges, however, were not overly concerned about this criticism and emphasised that the Advocates General also offered solutions for the incompatibilities. While the CJEU is not bound by the AG's statement, the final opinion by the CJEU, however, will be decisive for the project in the current form.

From a political point of view, Benoît Battistelli, President of the EPO, and Margot Fröhlinger, Director of Knowledge-Based Economy inside the DG Internal Market of the European Commission, commented on the current shape of the EEUPC project. While Ms. Fröhlinger repeated the Commission's economical position that implementing the EEUPC system would particularly help European SMEs, Mr. Battistelli emphasised that, not very surprisingly, "the EPO fully supports [...] a EU patent to be granted by the EPO" and praised the EPO's machine translation project as a "valuable contribution to solving the language issue [...] blocking progress on the EU patent for more than 30 years".

As to the crucial language issue, the European Commission published a proposal for a Council Regulation on the translation arrangements of the EU patent on June 30, 2010 (pdf) in which, basically, human translations of EU patents were suggested in case of dispute, while for informing the general public only the claims should be properly translated in three official languages (EN, FR, DE) and machine translations should be provided for the rest.

Then, on September 03, 2010 the EU Council published a background note on machine translations (Doc 13166/10) which expresses the importance of good-quality machine translations for implementation and acceptance of the EU patent. While the EU Commission's proposal has been said to have only little chance to be adopted due to strong resistance from southern Europe - especially from Italy and Spain -, it recently appeared that at least some EU member states consider machine translations as a realistic way to provide an overall translation regime for EU patents. 

According to the background note, the EPO sees its machine translation programme, which has been set up back in 2004, as a key element and important contribution for creating a EU patent and assumes that the translation regime as suggested by the proposal for a Council Regulation would be based on the EPO's machine translation programme, which, apparently, already ensures reasonable-quality translations from and to English to and from German, French, Spanish, and Italian, respectively.

However, besides the background note, there does not appear that much information is publicly available on this issue, which is why it is assumed on the IPJur blog that the discussion on machine translations should be kept behind closed doors and it is demanded that the Administrative Council's documents CA/T 6/09 and CA/29/10, which are mentioned in the background note but are not jet available, should be published now.

Meanwhile, as mentioned on the ipeg blog, AIPPI published its position on the European and EU Patent Court System on 10 September 2010. Interestingly, with respect to the Advocate General's criticism and under the headline "Green Light for EPLA?" the AIPPI's statement takes the position that, apart from the main incompatibility issues due to a lack of CJEU competence as raised by the Advocates General, §§ 58, 60, and 63 of the AG's statement "read like an official rehabilitation of the members of the EPLA Working Party who during the discussions on EPLA before 2006 had been accused by [...] the Commission [...] of having no right and competence to negotiate without the authorization of the EC alleging that only the European Community had competence for creating an international court [...]". In this respect, the AIPPI pointed out that "the AGs take exactly the opposite view, and it will be interesting to see where the CJEU stands".

Jochen Pagenberg, the Chairman of AIPPI's special committee Q165 summarised the position of his expert group as follows:
The question for Committee Q 165 will now be – assuming the ECJ argues along the same lines as the AGs – whether the work for EPLA should be resumed while leaving aside the EEUPC for a while, since EPLA might be easier to be accomplished now. Or whether one should at the same time explore parallel avenues around the political stumble stones of the EEUPC, in order not to lose time for the project as a whole. Historically the second alternative has proven very successful when the Strasbourg and the Munich Patent Conventions were discussed in the 1960ies by different teams who succeeded to agree on identical texts of substantive laws which are still valid today.

(Photo (C) 2007 by Luca Galuzzi via Wikimedial Comons under the terms of a CC license)