The European Patent Debate: Who Decides What's a Patent?

The problem for Community Patent's opponents is a political one: If they're not careful, they'll appear to be backing the existing system, which isn't all that popular among voters either - although some corporations don't seem to mind. So while lobbying groups feel free to argue against the evils of software companies deciding other people can't make applications that look like theirs, and then relying on the courts to defend them, opposition parties in the EU must adopt a more careful approach.

In turn, a coalition of left-wing parties in the European Parliament, including the Greens and the Socialists, have put forth a motion for a resolution - the likelihood for whose passage is reportedly low. The motion takes the oddly conservative-sounding viewpoint that bestowing central patent authority on an independent body would be against the principle of a united Europe.

"The creation of a non-EU European Patent Judiciary (EPJ) and a non-EU European Patent Court," their resolution states, "would call into question the commitment of its contracting states (that are also Member States) to the Community courts and the Single Market."

The only allusion made in the resolution to the software patent debate is the argument that, if the new independent authority was based on the current one, the fact that the current authority disagrees with so many national patent courts today could mean the new authority would decide cases inconsistently with the laws of most EU member nations. Today, many national courts back the current EPC, standing against software patentability.

By backing the notion of a "community framework" for European patents, but rejecting the independent authority of the EPLA, the implication now is that the Socialists and Greens would actually prefer a national patent authority -- a direct agency of the EU government -- so long as it would uphold the current EPC principles.

With the left-wing parties wrapping themselves in the EU flag, anti-software patent lobbying groups are finding themselves abandoned, and are now putting forth positions that stand clearly against the stated positions of both wings of Parliament.

The Foundation for a Free Information Infrastructure conceded that the creation of a single European Patent Court (whose own initials are also, in a sense, open-source), in its words, "could reject the abusive teachings of the EPO" with regard to software as a natural technical extension of an invention.

"However, the idea to establish a single European patent court is a trap," the FFII's recent statement continues, "because the patent movement will make sure that only judges will get appointed who intend to rubberstamp EPO case law and thus software patents. As political control of the patent system continues to be weak, the patent movement will further control substantive rules and a political mandate over patent policy will vanish."

European corporations backing the EPLA proposal include, most prominently, not software producers but, in another strange twist, automobile manufacturers.

At a European Commission hearing in Brussels last July, Volvo's patent department head in Germany, Werner Frtzhling, argued against the nationalization of the patent court, and in favor of EPLA. "Comparing the various proposals for such a litigation system," said Frtzhling, "we clearly prefer the implementation of the EPLA system instead of giving the European Court of Justice a more prominent role in the field of patent litigation."

Appropriating one of the EPLA opponent's own code-words, Frtzhling added that further "harmonization" of existing patent codes (the EPC) wasn't necessary, because it would only add to the existing confusion. If patent law truly needs to evolve, his argument continued, it would be so much easier to allow Parliament itself to amend the EPC to suit the needs of a changing economy.

The further danger, Frtzhling continued, was that a national European Patent Court would effectively codify the status quo, where national patent courts agree in principle to respect each other's patents, even though they know in advance they can't even read them.

The EPC, he said, would be "a step in the wrong direction since it will jeopardize the quality of patents and will increase uncertainty regarding the legal effect of such patents. A 'validation' of such national patents by the European Patent Office is not desirable either since it would duplicate work and costs, and it would extend the time needed for the examination procedure considerably."

So at least for now, the debate over whether software constitutes intellectual property has made enemies out of the former champions of personal liberty -- now wrapped in the cloak of nationalism -- and the makers of the car many would think they're most likely to be seen driving.