Why is the global patent industry lobbying for a new European patent treaty?

Since the 'failure' of the 2005 software patent directive, the patent industry has been lobbying hard for a new way to introduce software patents. Who are these people, and why do they believe EPLA is the key to software patents?

The global patent industry

The global patent industry is a lucrative set of businesses that makes money from researching, writing, granting, licensing, and litigating patents. The patent industry in Europe consists of:

  • The national patent offices.
  • The European Patent Office.
  • Independent patent experts and attornies.
  • Patent lawyers who manage intellectual property issues for major corporations.
  • Patent-holding specialist firms (also called 'patent trolls').

As any business, the patent industry is driven by profit. The patent industry has a monopoly over the patent business. For example, there are no private patent examiners, so patent examination costs are very high, and the patent examination process is inefficient. The bigger the monopoly, the higher the costs: the EPO charges several times more for patent examination than a typical national patent office.

The software patent directive 'failure'

In 2005 the FFII helped Parliament beat the Software Patent Directive. The patent industry is still traumatised by what it describes as the "the largest-ever lobbying campaign in the history of the parliament". It has been searching for a new route to software patents, and has explored several alternatives:

  • A Community Patent system
  • Harmonisation via the TRIPS treaty
  • Harmonisation via the European Patent Convention

The European Patent Litigation Agreement

The European Patent Litigation Agreement (EPLA) is a draft proposal for a new European patent litigation system that is a 'solution to the problems' of the current European patent system, which has suffered in three main areas over the last decades:

  1. The rise of the EU has created a new model for collaboration between countries, and this new model does not fit well with the old model of the European Patent Convention (EPC), an agreement between countries including non-EU states, and which spawned the European Patent Organisation (EPOrg) and European Patent Office (EPO).
  2. Under pressure from the patent industry, the patent system has lowered its standards so that more patents could be granted, especially in areas such as software which were not viewed as patentable when the EPC was signed, being already well-protected by copyright.
  3. Patents are still arbitrated in national high-courts, which have kept a view closer in line with the EPC's exclusions of patentable subject matter. This is particularly important because it means that in the field of software, national courts often reject patents which are granted by the EPO and upheld by the EPO's Technical Boards of Appeal (TBA).

These three problems have created significant stress within the patent system: the patent industry gets more powerful, but finds it harder to exercise that power than, for example, in the USA, which has allowed an inceasingly litigous and unfettered patent industry to expand, especially in biotechnology, pharmaceuticals, and information technology (software).

The EPLA proposes that:

  1. National courts lose their power to decide over patent issues.
  2. A new European patent court would be created, with judges appointed by the EPOrg and potentially coming from EPO staff. This includes current Technical Boards of Appeal (TBA) judges who have been criticised as the primary source of giving ground on patentable subject matter.
  3. To give this effect in EU member states, the EU would become a signatory to the EPC.
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