Future Action in the Field of Patents
September 28, 2006 12:00 AM
By Sharon Bowles MEP in European Parliament
Originally published by Sharon Bowles MEP
By Sharon Bowles MEP in European Parliament
Originally published by Sharon Bowles MEP
Mr President, Commissioner, as you know, I attended the patent consultation day. I made my own submission and I have read many of the others and I think that what you have just given us is a very fair summary. I would also like to thank you for having moved that consultation day to a day that did not clash with a Strasbourg session, so that I and other MEPs were able to attend.
It was a very useful exercise, because it has shown the extent of the problems with the Community patent proposals. Translations, as we knew, were a problem but now it shows that the need for a litigation system, with specialist judges that are accessible within Member States, is another. We all want single market considerations to prevail and that leads eventually to having a Community patent, but the consultation shows that there are steps that can be taken to improve the process.
The EPLA initiative by Member States, which is optional, embraces some of those steps. It is still work in progress, so now there is an opportunity for you to participate and I welcome the fact that you say you are going to take that opportunity. That can only be helpful in working towards a goal in which there is eventually a single or merged European and Community patent system. Maybe you can help to fix some of the criticisms of EPLA. One fix I would like is to minimise court fees, rather than force litigants to bear all the costs of judges' salaries and the establishment costs of the appeal court. A second fix I would like is the retention of national patent courts, instead of phasing them out after seven years. Surely they could remain, in the same way that national patent filings have now coexisted with European patents for nearly 30 years.
On the other hand, the possibility of having nationally based courts of first instance and a panel of judges, with at least one who is technically qualified and at least two who are legally qualified and from different Member States, might be superior to the current ECJ arrangements, were they to apply to a Community patent.
Mr Rocard and some others have criticised EPLA, since it would allow EPO Board of Appeal members to become technical judges. That objection is based solely upon not agreeing with particular decisions in one or two areas of technology. It takes no account of the publicly available record showing that technical boards of the EPO are independent of both the EPO examining division and EPO practices. It ignores the fact that, in the EPLA structure, such technical judges would be in the minority among national judges who have been praised by those of the same persuasion as Mr Rocard for their stance in those areas of technology. However, I question whether we would want them to be able to have the two jobs at once - I do not think that was intended - and I think that could be clarified.
Also, the appointment of judges via representatives from Member State governments follows the precedents of many institutions, including the ECJ, so I do not think there is huge substance in these arguments and it would certainly be a mistake for the Commission to miss out on contributing to and learning from the EPLA process.
What would you like to do next?
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