Presentation Outline
  • The global patent industry
    • The national patent offices
    • The European Patent Office
    • Independent patent experts and attornies
    • IP lawyers for major corporations
    • Patent-holding specialist firms (trolls)
  • A for-profit industry
    • A largely unregulated monopoly
    • No competition in patent examination
    • EPO fees several times higher than national fees
    • Patent industry lobbies in Brussels, Munich, etc.
  • The software patent directive 'failure'
    • June 2005: FFII helps Parliament beat swpat directive
    • Patent industry still traumatised
    • Looking for new routes to software patents
      • Community patent
      • Harmonisation via TRIPS
      • Harmonisation via EPC/EPC2000
  • 'Problems' of current patent system
    • EU not compatible with old EPC system
    • EPO practice does not match national practice
    • No cheap and reliable European patent
    • Standard complaints about 'innovation gap'
    • While EU IT industry escapes worst of US storm
  • Introducing EPLA
    • Draft proposal from EPO - a new multiparty treaty
    • Creates new organisation: European Patent Judiciary
    • Creates new European patent court
    • Run by EPC representatives = patent industry
    • EPLA court will enforce EPO patent policy
  • The US CAFC experiment
    • Since 1982, one US patent court system has:
      • Lowered the threshold standard of patentability
      • Encouraged extortionate demands and settlements
      • Eliminated virtually all limits on patentable subject matter
      • Given patents an unjustifiably high presumption of validity
    • The CACF monopoly has been bad for the patent system
  • EPLA is a worse monopoly than CAFC
    • No legislative oversight
    • No judicial oversight
    • No independent judiciary
    • Wholly specialized on patents
  • EPLA Road Map
    • EPC is changed to allow EU to join
    • EU joins EPC and/or EPLA as signatory
    • Subset of EPC states move ahead via 'Closer co-operation'
    • ECJ would be called on to interpret EPC
    • ECJ must abide to EPC Implementing Regulations (IR)
    • EPO Admin Council - the patent industry - can change IR
    • From December 2007, Admin Council can amend Article 52
  • Impact of EPLA
    • Circumvents E.P. decision on software patents
    • Creates a new court system under control of patent industry
    • Financed by patent litigation
    • Introduce software patents to EU states
      • Impose EPO TBA interpretation via judges, or
      • Force ECJ to adopt EPO's practice, or
      • Modify EPC Article 52 to remove restrictions
  • Other effects of EPLA
    • Remove national courts' regulation of patent industry
    • Consolidate patent industry control over patent system
    • Increase cost of defending against patent litigation
    • Make it easier for large firms to claim patents
    • Create court system run by the patent industry
  • Pro-EPLA propaganda
    • Europe is falling behind in economic performance
    • Europe needs to be more innovative
    • Innovation depends on a strong intellectual property regime
    • This means we need stronger and more reliable patent system
    • Litigation in Europe's current patent system is too expensive
    • The Community Patent is the ultimate solution
    • EPLA plus the London Protocol are a good interim solution
  • Debunking the propaganda
    • The US is falling behind in economic performance
    • Innovation depends on taxation, market size & accessibility, etc.
    • Intellectual property is many things, not just patents
    • Main problem with patents is not litigation, but bad patents
    • EPLA would block, not promote, an EU patent system
  • Cost of pro-EPLA campaign
    • Large efforts in 2006 by EPO and Commission
    • Estimated cost: 100m-250m Euro
    • Spent on:
      • Documentary & legal support
      • Media events
      • Public relations
      • Public opinion 'research'
      • Direct lobbying
  • The EP Organisation
    • Set-up in 1997 by signing of EPC
    • 31 member states incl. Romania, Switzerland and Turkey
    • Run by EP Office and Administrative Council
    • A treaty organisation like UN or World Postal Union
    • Diplomatic immunity, tax-free status
    • Run by officials from national patent offices
  • FFII actions on EPLA
    • epla.ffii.org microsite
    • Definition of alternatives to EPLA
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