By Tove Iren S. Gerhardsen
[Editor's Note, 12 October: Parliament passed the resolution, with amendments, according to informed sources. Details to follow soon.]
Members of the European Parliament will vote on 12 October on a resolution that would give the European Commission the green light to further explore changes to European patent policy.

But the possible results, such as a European Community patent and a patent arbitration system in Europe, would have to be renegotiated and probably would be different from current proposals. These changes would mean that patent holders could challenge any alleged infringements in a single European patent court.

After consultations, the three largest international-level parties in the European Parliament have agreed on the compromise resolution, and as they hold 550 of the chamber’s 732 seats, “it is a mere formality for that compromise proposal to be carried by a solid majority,” said Florian Müller of No Software Patents, which has opposed the patent policy changes.

The compromise resolution agrees to further discussion but says that “renegotiation is needed,” Müller said.

How to improve the patent system in Europe was most recently debated by members of the European Parliament in Strasbourg on 28 September. Commissioner for the Internal Market and Services, Charlie McCreevy, who launched this debate, attended the meeting.

A public hearing was held in Brussels on 12 July, at which it became clear that industry as well as the parties were split on the way forward (IPW, European Policy, 17 July 2006).

There are several issues involved in the “patent future” debate. A possible Community patent was raised in a 2003 EU draft proposal but after strong disagreement on the language requirements for translations, among other things, it never moved on. Also, a draft proposal for a single court or arbitration system for patents has been on the table for years, called the European Patent Litigation Agreement (EPLA).

A European Patent Organisation Working Party on Litigation has worked on the EPLA. MEP Sharon Bowles of the Alliance for Liberals and Democrats for Europe (ALDE) said:

“We accepted into the resolution the Socialists’ wording that EPLA needed significant improvements and a satisfactory proposal for the rules of procedure of the EPLA court. The first point is reasonable. The second point was superfluous, actually if anything showing our ignorance of the fact that EPLA is a work in progress and that national judges met over the summer to commence the drafting of rules of procedure.”

The debate comes about a year after the European Parliament voted with 684 votes to 14 against the introduction of software patents in Europe, but McCreevy has stressed that the current debate is not a means to re-introduce this issue.

On 28 September, McCreevy said: “I am convinced that in an ideal world the Community patent is the solution, but in the real world there is no prospect of agreement on the Community patent in the near future.”

He added that “the Community patent and the EPLA are not mutually exclusive initiatives; indeed, our aim should be to ensure that they converge.”

“Realistically the only likely route to a Community patent will be by learning the lessons of EPLA, whether by EPLA actually happening or by participating in trying to get the details finalised,” said Bowles.

Compromise Likely Will Tip Balance

The three groups that have reached a compromise are: The Group of the European People’s Party (Christian Democrats) and European Democrats (EPP-ED), the Party of European Socialists (PES) and the ALDE.

The draft resolution urges the Commission to “explore all courses” for improving the patent and patent litigation systems in the EU, including participation in further discussions on EPLA, and joining the Munich convention (Convention on the Grant of European Patents) as well as revising the Community patent proposals, according to the European Parliament. On the EPLA, “the proposed text needs significant improvements and a satisfactory proposal for the rules of procedure of the EPLA Court,” the resolution states.

“With respect to the EPLA, [the resolution] makes it clear that the current proposal is not good enough from the European Parliament’s point of view. So the Commission is given the opportunity to put forward some proposal for how to turn the EPLA into a more acceptable proposal,” Müller said.

MEP Jaroslav Zverina of EPP-ED told Intellectual Property Watch that he supports the resolution but has pointed out some possible issues. “The problem of possible incompatibility of the European Patent Agreement, EPLA, with the EU law exists and should be investigated in depth,” he said.

The PES pointed out in the hearing that there could be a problem with the European Patent Office Board of Appeal members becoming technical judges of an EPLA scheme.

But other EPP-ED members support the EPLA wholeheartedly. “The current system disadvantages small and medium-sized enterprises (SMEs). Big companies can now sue SMEs in several member states [in] parallel. SMEs generally cannot afford several litigations running at a time. With EPLA, there would be only one single litigation,” MEP Klaus-Heiner Lehne of EPP-ED told Intellectual Property Watch.

“Those people who are (seemingly) against EPLA are against a patent system altogether and want to stop any kind of development in this field,” he said.

Opposition Remains

Meanwhile, other international-level parties such as the Independence/Democracy Group (IND/DEM), are opposed. “I do not want unelected bureaucrats telling me what I can and cannot do,” MEP Thomas Wise of IND/DEM said in an interview.

Wise said McCreevy had put forward the proposal of discussing the patent system “because the EU wants to control every single area of our lives.” He said he could not agree to the compromise resolution on any terms.

In the 28 September debate, the Greens/European Free Alliance also opposed changes to the patent system. “If what we want is harmonised jurisdiction, why do we not pursue that aim through EU directives” but rather through the non-EU body EPO [European Patent Office], said Raul Romeva i Rueda. “Some people are afraid to face the democratic process.” He pointed out that big companies such as Nokia and GlaxoSmithKline are concerned about the EPLA.

As for the 12 October vote, Wise said it would “probably” go through, but Zverina cautiously said: “I am not an optimist because of the great number of different attitudes to this problem within the Parliament.”

Lehne added, “I am not a prophet, but it seems that the majority in the House is going to follow what is reasonable.”

Müller said in his blog that the compromise resolution was neither a clear yes or no, but rather a “Maybe, but …[changes are needed]” to the EPLA plans. In any case, “It will take two years or more before the EPLA will, if ever, be ratified,” he said.

Meanwhile MEP Erika Mann (PES) said, according to Dow Jones news service, that with this resolution the Parliament practically postpones a decision on the EPLA as it neither urges the Commission to drop its EPLA plans nor supports the EPLA in its present form, Müller said.

Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch.