EPLA, the next big thing, will it fly?

October will be an important month for the EPLA ("European Patent Litigation Agreement”) initiative. However, the initiative threatens to become prey to anti-patent lobbyists (formerly known as anti-software patent lobbyists). They are now taking aim at EPLA. Last week the European Parliament debated the issue with EU commissioner McCreevy, who finally spoke in support of EPLA (see earlier post: “EPLA, The Next Anti-Patent Punchbag”). Several draft regulations have been discussed. On October 12, the European Parliament will vote on motions and draft resolutions debated last week.

The current debate, however, is being distorted by arguments that EPLA is nothing but a “coverted” way to enable the much despised software patents ‘through the back door” (One blog gave a taste of this sort of bully arguments stating “EPLA=software patent”). The loudest antis among the lobbyists do not blench at spreading outright nonsense, wrongly citing industry representatives (GSK, Nokia) to “prove” that multinational patent litigation is rare in Europe and confusing legitimate concerns with opposition (issues about cost, independent and qualified patent judges, location of the court, languages, etc). Opponents, like was the case in the software debate, use manipulative arguments and in some cases plain nonsense to get their message across. A proper and sound discussion is not helped by some opponents’ arguments. What to think of a press release by the Green/EFA group in the European parliament, heading: “EU Commission must not introduce EU patents by the backdoor”. If this is the way in which such formidable legislative work undertaken by EPC countries and IP professionals, is being debated than expect not less than a similar fate for the EPLA as for the CII (the EU Directive on “Computer Implemented Inventions”) which was defeated in European Parliament last year.

Supporters of the EPLA are also to blame. They often speak with double tongue and seem unable to launch a strong unequivocal support for EPLA. The drafters of the EPLA, most notably also the patent practitioners, organized in EPLAW, remain silent if it comes to counter arguments by opponents.

One big difference though. The EU parliament has formally no say about the EPLA, as this is a proposed legislative initiative of the same countries that initiated the coming into existence of the EPC, the European convention that created a European Patent in 1973. It is not the EU Council or EU Commission that propose EPLA, so strictly speaking EPLA is simply not subject to EU Parliament approval. Yet, politically, EPLA will not become reality if the EU Commission (Commissioner McCreevy is forced to withhold his support for the EPLA. The anti software lobby seems to accept no les than that.

The EPLA is, by all means, the “next big thing” since the major legislative task of creating the European Patent Convention of 1973 (“EPC”) . More than 30 years after this successful creation of the grant of a single European patent, Europe has been struggling to find a way to also harmonize the enforcement of patents issued by the European Patent Office. To grant a patent along uniform rules was one thing, to create a system where holders of that right can enforce it all over Europe in a predictable, cost effective and uniform way, is quite another. What seems to be forgotten in the discussions is that strong patents are beneficial to innovative activities. Innovation through protecting inventions is at the heart of post war industry policies in Europe.

Practitioners have, on behalf of their clients, tried various other ways to create a EU wide enforcement system for European patents. The cross border practice, initiated by Netherlands and Germany was recently cut off as a enforcement tool by the ECJ in its GAT vs. LuK and Primus cs vs. Roche decisions. The Community Patent (“ComPat”) although not yet formally dead, is highly unlikely to ever revive, strangled in language and costs issues. ComPat was drafted by Eurocrats, yet killed by politicians, EPLA is drafted by technocrats. Will it also be killed by politicians?

If the supporters do a similar weak job in lobbying for the EPLA at political level as they did with the CII initiative and only ridicule the opponents, without a thorough and constructive debate, EPLA is doomed to fail. The only way to go forward is to have a sound and constructive discussion between those in favor and those opposed. Industry representatives should speak with one tongue, should discuss issues with the EPLA with SME representatives among each other in industry and other lobby organizations like UNICE and similar groups. They should undertake a joint effort to make EPLA even better, not to “double tongue”. Likewise, if the opponents continue to debate the way they have aired their views so far, there will be no progress and this great initiative will not fly. It would be a disaster for Europe’s innovation policy, we will not be able to have a effective answer to growing competition of China, we will be much less effective to challenge the Asian tigers than the Americans do and we will end up in a divided Europe, with patents not being used effectively for what they are created for: foster innovation.

Agreed, the relation between innovation and patents need to be (further) researched and updated. Policymakers need to be provided with academic and independent research into the relation between innovation and patents. In Europe we can learn from the way in which in the US that same debate on quality of patents and innovation is being held.

To be continued.