Last chance saloon for European patents
OUT-LAW Radio, 05/04/2007
As Charlie McCreevy gives European patent reform one last
chance, we ask: can he break a 30-year deadlock?
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up-to-date on all the twists and turns in the world of
technology law. Every week we bring you the latest news and
in-depth features that help you to make sense of the ever-changing
laws that govern technology today.
My name is Matthew Magee, and coming up on this week’s show we
have a close look at the vexed issue of European patents and how
the European Commission's latest proposals could break
a 30-year deadlock.
But first, the news
- EMI deal with Apple may not be enough to keep Europe off their
backs; and
- monitoring of employee breached human rights, says European
Court.
EMI and Apple have agreed to sell the record label's entire
non-Beatles back catalogue without digital rights management
restrictions, but the music industry faces increased pressure to
change the way it sells digital music.
On the same day that the EMI deal was announced the European
Commission issued record labels and Apple with a statement of
objections, alleging that their business practices are
restrictive.
The Commission says that the fact the consumers can only buy
music from the iTunes online shop in their country of residence
violates the EC Treaty's rules prohibiting restrictive business
practices.
Apple also faces continued pressure in Norway as a deadline
remains for it to overhaul the way it sells music there after a
ruling by that country's Consumer Ombudsman.
Until now all songs sold by Apple's iTunes, the world's biggest
download shop, have contained technology intended to stop the songs
being copied. EMI will now sell music without copy protection
through iTunes.
The monitoring by a Welsh college of an employee's email, phone
and internet use was a breach of her human rights, the European
Court of Human Rights has ruled. The UK Government must pay £3,000
in damages and legal costs in the case.
Lynette Copland said that her email traffic, internet
activity and telephone usage were all monitored by the deputy
principal of Carmarthenshire College or his staff in a manner which
breached her rights to a private life as enshrined in the European
Convention of Human Rights. Her case was against the Government
because Carmarthenshire College is a publicly funded body.
The Government argued that monitoring which it said was far more
limited than Copland claimed was justified in order to determine
whether or not she had been excessively using college resources for
personal communication.
The court said that it was not convinced by that argument and
that the college's activity had been an unlawful breach of her
rights and that protection for telephone calls extends to emails
and logs of internet use.
That was this week’s OUT-LAW news.
Like an exasperated school teacher giving an unruly class one
last chance at playing nice or else it's back to double maths, EU
Internal Markets Commissioner Charlie McCreevy has rather
tetchily said he will have one last go at sorting out European
patents.
This is an area fraught with political, constitutional and
economic tensions. It is over 30 years since the first attempt
to harmonise the patents process.
The problem is that Europe is increasingly a single market but
patents are still largely nationally awarded, adjudicated and
applied. So if you want to protect your invention you need to do it
27 times, once in each member state.
Thirty years of seeking a solution has resulted in two competing
ideas. One is the largely successful European Patent Convention
which set up the European Patent Office (EPO), a body that operates
outside of the EU Government structure. It awards patents
Europe-wide based on the Convention. But this is not one patent.
It's a bundle of patents, and you must get them translated into a
country's language for it to be accepted there. The EPO has
proposed a European patent litigation agreement or the EPLA to
adjudicate cases Europe-wide. Countries can opt in or opt out of
it.
The other proposal is official EU policy pursued by the European
Commission and it's the community patent. This will be a patent
that would automatically apply in all member states and which would
be translated into all the EU's languages. It would have its own
court system.
Confused? Hold on to your hats it's about to get much worse.
After years of battling about how to build a viable system McCreevy
has proposed a compromise. I asked John Gray, a patent
attorney at Murgitroyd's, to shed some light on McCreevy's supposed
big idea.
John Gray: I found it quite hard to find what the new idea was
in the communication to be honest. The community over the years has
talked about having a central community patents court because you
have the single community patent which has to be enforced or
knocked out at one go. In parallel with that the existing European
patent system is already looking at improving litigation
arrangements through this EPLA and so the Commission's proposal is
to say well the EPLA isn't our baby but it's there and it's
tailored as much as possible to be compatible with our systems so
as they say a consensus could be built on the basis of an
integrated approach and it's very short on detail. I think there
are more detailed documents to come.
There are two problems which both systems have to try and deal
with. One is the language issue. The cost of translation into the
EU's 23 official languages is just too much for most
applicants to bear. But why does it have to be that way? Gray
explains why translation is more than just a nicety in the world of
patents.
John Gray: A patent is a technical and legal document and when
it's granted to you it gives you the right to prevent somebody
making some machine or using some process that's covered by your
patent. The justification for granting patents is that the patent
specification contains a teaching of how to do the thing and its in
return for disclosing how you do your process, how you make your
machine that you get granted this monopoly for a limited time so
equally somebody in a country whose language isn't one of these
official languages doesn't necessarily get that benefit so much.
They don't get the benefit of the teaching from the document and
they may even get the downside of accidentally infringing a patent
that isn't written in their language so that's why the language
issue is contentious.
The other big problem is how to deal with litigation on
Europe-wide patents. The European Commission had proposed its own
court system while the EPO has put together the EPLA. The EPLA is a
more flexible model in that unlike the proposed community patent
court it is voluntary. And it's flexible so that smaller companies
can control their costs better.
John Gray: The EPLA proposal is to establish a central court, a
central European patent court and an appeal court but to have the
option for countries not to join it at all, to join it so that that
court is their patents court or to join it so that they keep their
own patents courts working in the expert way that they have been
working but they have the option to refer difficult questions of
law to the central court so that the central court becomes a kind
of advisory body.
McCreevy this week published a document which is meant to be the
starting point for a compromise. In fact says Gray on the crucial
issue of litigation it seems that the Commission is largely
adopting the patent office's EPLA.
John Gray: It seems to be, well we can't beat them but we'll
join them and get the litigation arrangements we need for the
community patent through the mechanisms that are already
established by the EPLA [so] this European patents court.
Matthew Magee: So they're giving up on the community court then?
Is that essentially what he's saying here?
John Gray: It's hard for me to read it otherwise. I think
the Commission is saying we haven't found another way of doing it.
I think the competing national interests and national sensitivities
are since 1975 comprehensively defeating any efforts that the
Commission can make to create its own ideal community patent
system.
Language is trickier. But again the European Patent Convention
signatories are ahead of Brussels. While the Commission still
wrestles with how to balance access to patents with cost the EPO
has proposed the London agreement which
needs eight countries to sign it before it comes into
force and which could be active in just a few months.
This proposes that the vital central patent claims be made
available in English, French and German and that the rest of the
patent in just one of those three languages. If, say, Poland signs
up to the agreement it waives its rights to demand a polish
translation in order for the patent to be valid. It's a shortcut
that looks likely to work as long as France overcomes its
traditional protection of its language and gets on board.
But why does this all matter? Is it really important? Well yes.
The problem is that for a Chinese inventor to protect his invention
against copying by one billion people means incurring the cost of
just one patent application. If you file three - one in China, one
in Japan and one in the US - you've covered some of the most
important and biggest markets in the world.
A European inventor has to deal with 27 countries right now
to get the same protection in his own market. The Commission says
that research shows that a European patent for 13 countries is
11 times more expensive than a US patent and 13 times
more expensive than a Japanese one.
Gray says that patents are economically vital.
John Gray: The Commission has done a lot of studies around
whether patents are valuable and what they contribute and they've
concluded that they do contribute to innovative performance and
there is a correlation between countries using the patent system
and countries where companies use the patent system to their
advantage and progress in innovation and contribution to the
economy and there's a fear that it's easier for a Japanese or an
American company to do that because of their large home market
covered by their one cheaper patent. And that our companies are
disadvantaged as a result.
So it looks as though Mccreevy has made some pretty major
compromises in his bid for cheap, Europe-wide patents. His
proposals are thin enough as yet and there are many issues to be
settled but it might just be that his movement this week on some of
the crucial issues will be vital in finally settling this 30-year
old problem.
That's all we have time for this week. Thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you have a legal
problem you'd like us to discuss? Do you know of a technology law
story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew
Magee for international law firm Pinsent Masons.
