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.