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Deutsch: Noch eine offene Tür für Softwarepatente in der EU

A new international treaty United Patent Litigation System (UPLS) that may create an centralised trusted patent court is the new open door for software patents in the European Union.

The draft UPLS is inspired from the now defunct European Patent Litigation Agreement (EPLA) and is estimated to creat a new international patent court. As FFII (Foundation for a Free Information Infrastructure) points out, the system will by-pass the national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus, hand-picked patent judges will have the last word on software patents, meaning that will have the ultimate power to interpret patent law.

After the Recommendation of 24 March 2009 of the European Commission to the Council that would provide the Commission with negotiating directives for the conclusion of an agreement creating the UPLS, the Competitiveness Council of EU Ministers of 28-29 May will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties.

The UPLS will not be a EU institution (the same as for the present European Patent Office - EPO) and thus will exceed the competence of the European Court of Justice that will only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, (...) on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community."

Benjamin Henrion, President of the FFII and leader of its litigation working group, explains: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, underlines that the US experience proves that "it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is what typically happens in Germany where the Senate of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

European Commission pushes for software patents via a trusted court (12.05.2009)
http://press.ffii.org/Press_releases/European_Commission_pushes_for_so...

Patents: Commission sets out next steps for creation of unified patent litigation system (24.03.2009)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/460&...

Recommendation from the Commission to the Council to authorise the Commission to open negotiations for the adoption of an Agreement creating a Unified Patent Litigation System (20.03.2009)
http://ec.europa.eu/internal_market/indprop/docs/patent/recommendation...

"Council seeks to legalise software patents with the Community Patent" says French expert (11.02.2009)
http://stopsoftwarepatents.org/forum/t-129596/council-seeks-to-legalis...