02 February 2011

Anti-Patent Campaigners of FFII Suggest that OHIM Should be in Charge of Coming EU Patent (Updated)

Former FFII President H Pilch and R Stallman
protest against software patents in Munich
After years of fruitless debates on possible language regimes of a EU patent system, a qualified majority of EU members is about to agree on enhanced cooperation to at least establish a 'small version' EU Patent (without Spain, Italy and a handful of others) based on a legislative proposal of the EU Commission.

That's the moment in history when the Foundation for a Free Information Infrastructure (FFII), which has become widely known for their emphatic resistance against the EU Software Patent Directive (COM (2002) 92) in 2002 to 2005, comes up with the idea that the EU Office for Harmonisation in the Internal Market (OHIM) should be in charge of the coming EU patent rather than the more independent European Patent Office (EPO), since the FFII deeply suspects EPO "for granting of software patents without a prior legislative authorisation".

In reply to a proposal for using enhanced cooperation of JURI committee chairman Klaus-Heiner Lehne (EPP), which has meanwhile been accepted by the committee, FFII suggested in an open letter sent to MEPs on 19 January 2011:
"Enhanced Cooperation" is the saddest road to choose from an European integration perspective. Everything should be tried to avoid an European Union with member states on different speed lanes and to get a real European solution. Europe is not only about German industry needs. [...]

 The proposal [...] leaves an elephant in the room completely untouched. Without a consideration of alternatives or an impact assessment the European Patent Organisation (EPO) [...] would be tasked with examination. A strong role for the EPO makes the EU yield any governance influence over its Unitary Patent. [...]

Pro forma the Unitary Patent should be managed by an EU institution with the actual administrative work distributed to specialists (at the EPO etc.) on EU terms. The Office for the Harmonisation of the Internal Market (OHIM) in Alicante (Spain) [...] looks ideal to govern the European or national patent offices [...]. A role for the EU institution in Spain would also unblock Spanish opposition to an actual Community Patent.
So the FFII's mistrust against their old opponents from the days of the battle over the Software Patent Directive, i.e. the EPO and the EU Commission, is still a vital driving force.

The strategy is clear: The two major weaknesses of the proposed EU patent in the eyes of FFII - namely the lack of unanimity ("saddest road") and the central legislative role of the EPO and its Boards of Appeal ("yield any governance influence") - could be overcome by one single stroke of genius: installing OHIM as a supervising EU patent authority, which, according to FFII plans, would firstly convince Spain to support the EU patent (but what will be offered to Italy?) and secondly degrade the EPO and its  'illegal' software patent legislation to an administrative role in which examiners would have to execute patent granting standards as defined by OHIM and its then required Boards of Patent Appeals, as legislatively determined by the European Parliament.

However, should the FFII really be concerned about the EU's governance influence over the EPO, the good news is that the European Union even today has full control over the EPO, since the EU member states have a clear majority of more that 70% in both the Conference of Ministers (Art. 4a EPC) and the Administrative Council (Art. 26 to 36 EPC). This influence will yet be increased when the European Union accedes the European Patent Convention (EPC).

The anti-patent campaigners further suspect that the EU Commission's approach to implementing enhanced cooperation tends to undermine parliamentary control and prevents democratic scrutiny:
[T]he extreme rushing of Commissioner Michel Barnier and the rubber-stamping attitude of rapporteur Klaus-Heiner Lehne [...] would only undermine an opportunity for the Members of Parliament to exercise democratic scrutiny. It is unwise for MEPs to restrain their powers as suggested by the European Commissioner Michel Barnier. [...]

The European Parliament needs to make better use of its prerogatives. Without its consent there can't be enhanced cooperation under Article 329 TFEU. [...] Parliament should remind the institutions to deliver on its demands from the Gierek report ('[...] to propose, in the context of the new Community patent, a procedure for eliminating trivial patents and sleeping patents').
Apparently, the FFII tries to seize the opportunity to prevent the EU patent as proposed by the Commission with the help of the Parliament, which is encouraged to follow the same agenda as in the 2005 software patents battle and to defend the 'true' European values and interests, as defined by the FFII. However, this group is probably not so much concerned about possible deficiencies of enhanced cooperation or parliamentary control over the EPO - the real focus rather is to achieve the ultimate objective of eliminating the alleged illegal practice of the EPO to grant "software patents without a prior legislative authorisation" by disempowering the European Patent Organisation.

However, it is less than unlikely that the FFII really can influence the EU Parliament to question enhanced cooperation at this stage. Since the glorious days of the 2005 software patents directive clash, the group has lost its spin, strategic efficiency and ability to formulate thrilling goals and mobilize supporters. Some old fellows even consider today's FFII "decayed" and "promoting open standards for pay".

Nevertheless, rather accidentally, the open letter also raises a reasonable issue:
The European Parliament should withhold its consent before the ECJ has delivered its opinion on the patent court.
In this respect, the FFII is in good company, since Messrs José Luis Zapatero and Silvio Berlusconi have suggested in their joint letter of 7 December 2010 to wait until the opinion of the Court of Justice of the European Union (CJEU) on the Unified Patent Litigation System is delivered. This would by rational at least due to the two following reasons:
  1. A unified patent for (parts of) the EU does not make much sense without a unified EU Patent Court enabling centralised EU-wide infringement and nullity actions. The proposed European and EU Patents Court (EEUPC) thus is absolutely required as institutional basis of the EU patent system (cf. EU doc 111744).
  2. The Advocate General's preparatory, non-binding Statement of Position raised a number of essential objections on the EU Council’s proposal for the EEUPC (see earlier posting). As to the three-language regime of the proposed EU patent, the Advocate General explained under § 121, that "this linguistic system appears to be unacceptable with regard to observance of the rights of defence". 
Consequently, a negative opinion of the CJEU on the EEUPC would severely affect the efforts to implement the EU patent by enhanced cooperation. Without the CJEU's clear signal that the EEUPC will actually come, an EU patent would be of very limited value at the time being.

UPDATE (03.02.2011): I just got aware of the following joint letter of three anti-patent activists groups (April, FSF, FFII) to members of the European Parliament, dated 31 January 2011:
Dear Member of the European Parliament,

We, as nonprofit organizations acting in the field of patent policy, are concerned about the fast-tracking of the proposal for enhanced cooperation on the unitary patent (NLE/2010/0384), which was voted in JURI Commission on January 27th. Given that the Court of Justice (CJEU) will soon publish its opinion on the legality of a proposed jurisdiction governing the settlement of litigation related to the unitary patent and given that this proposal involves transferring legislative power from the EP to the European Patent Office (EPO) [1], we believe it would be sensible to wait for the CJEU’s opinion so that there can be an informed debate before deciding this important issue.

The current proposal for a unitary patent [2] requires a unified jurisdiction with a central court. According to the Commission, the current proposal is similar to the European and EU Patent Court (EEUPC) proposal. The CJEU is reviewing the EEUPC proposal but has not yet released its opinion regarding compliance with the EU Treaties. This opinion is far from a formality: the Advocates General of the CJEU were highly critical of the project and deemed it incompatible with the EU Treaties [3], because the new patent court rulings would have a direct impact on EU law without any control from EU institutions.

Further, the current proposal involves delegating the entire pre-granting procedure for the unitary patent to the EPO, whose patent-granting excesses have been denounced repeatedly. Existing outside of the EU, the EPO already has very little oversight. The main democratic control that exists is that the EP still has the competence to legislate. The EPO’s own Enlarged Board of Appeal acknowledged the need for a real legislative body in the patent system in an opinion published in May 2010 on the topic of software patents, saying that “When judiciary-driven legal development meets its limits, it is time for the legislator to take over” [4]. When the CJEU’s opinion is published, it may contain useful suggestions for how to add the necessary oversight for such a system.

We respectfully request that the European Parliament postpone the vote regarding enhanced cooperation until publication of the CJEU’s opinion.

Tangui Morlier, April (President)
+33 1 78 76 92 82, prez@april.org
Ciaran O’Riordan, End Software Patents (Executive Director)
+32 487 64 17 54, ciaran@member.fsf.org
Benjamin Henrion, FFII (President)
+32 484 56 61 09, president@ffii.org