US experience

Europe follows the US, but incompetently

America launched a single patent court system about 25 years ago. The result: the introduction of wide-ranging service patents, the destruction of all barriers to patentability, and a generation of poor patents that are now blocking research and innovation in many areas.

The Court of Appeals of the Federal Circuit

The USA has experimented with something like EPLA. In 1982, the US Congress put all patent litigation into a single court called the Court of Appeals of the Federal Circuit (CAFC). This is how the US CCIA (Computer & Communications Industry Association) described the effects of CAFC:

The Federal Circuit has:

  • Lowered the threshold standard of patentability
  • Encouraged extortionate demands and settlements
  • Eliminated virtually all limits on patentable subject matter
  • Endowed issued patents with an unjustifiably high presumption of validity

Regarding EPLA, the CCIA said:

[CAFC] is not only a questionable model for Europe to follow but the proposed European system would be far more insular in the following respects:

  • No legislative oversight. In the United States, Congress is directly empowered to change patent law and patent institutions. Neither national legislatures nor the European Parliament would have this power.
  • No judicial oversight. In the United States, the Supreme Court can review Federal Circuit decisions, and it has granted review frequently in the last two years as concerns about the malfunctioning of the patent system have grown.
  • No independent judiciary. EPJ judges would be appointed by the EPO Administrative Council for limited terms, whereas Federal Circuit judges are appointed by the President for life.
  • Wholly specialized. EPJ would be exclusively focused on patents. Although the Federal Circuit has made its mark on patent policy, it has other responsibilities as well.

The CCIA concludes that:

[CAFC] has made patents more potent, easy to get, easy to assert, and available for a virtually unlimited range of subject matter. As shown in the 2002 joint Department of Justice/Federal Trade Commission (FTC) hearings, this has led to over-patenting, portfolio racing, opportunism, extortionate settlements, and failure of the public disclosure function. As the final FTC report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, makes clear, the ill effects have been borne disproportionately by the ICT sector.

This is what EPLA promises for Europe.

The Supreme Court has examined the obviousness of patents. No such remedy would exist under EPLA.

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