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Not being a lawyer, a patent attorney or even a scientist, I cannot pretend to understand the technical arguments deployed, but when you have an EPO Board of Appeal and the UK courts at loggerheads over something as important as the term “invention”, it seems to me that there must be a major problem.
So what’s happened? Well, Axel Horns, on his Ipjur blog site, has drawn attention to a recent decision from an EPO Board of Appeal, which seems to heavily criticise the UK’s most senior patent judge, Lord Justice Jacob. A recent decision by the UK Court of Appeal relating to patentability of software, for which the Lord Justice Jacob wrote the judgment (and also referred questions on software patentability to the Enlarged Board of Appeal of the EPO, which EPO president Alain Pompidou ruled should not be considered), is described as “irreconcilable with the European Patent Convention” by the board, headed by Stefan Steinbrenner.
Now I don’t know if the EPO is annoyed with Lord Justice Jacob for referring those questions (though I bet it is), but for a Board of Appeal to be that critical of a man who is so widely respected and admired in Europe is quite something, especially as he was delivering judgment on behalf of himself and two other Appeal Court judges. Much more importantly, for anyone looking to get and enforce a patent in Europe it is very worrying. How can there be any kind of certainty when the courts of a vital European patent jurisdiction and at least one Board of Appeal at the EPO hold such divergent views? And, without at least some kind of certainty, how can a patent system function adequately? Bear in mind also that Dr Klaus-J Melullis, the presiding judge at the Federal Court of Justice, Karlsruhe, has also spoken about the patentability of software recently, and his views do not seem to coincide with those of the Board of Appeal either. Basically, it is a mess, isn’t it?
Coincidentally, yesterday I was having lunch with someone who was quite involved in the attempt to get the CII Directive passed into European law. To my very great surprise, he told me he thought there may be another attempt to introduce legislation next year. If that’s true, I can only assume that the Commission believes it will be successful, because there is no way that it will want to go through the fight it did last time. There is a precedent with the Biotech Directive, however. After intense lobbying from those who opposed it, and insipid efforts from those in favour, the European Parliament initially rejected the legislation in 1995. However, after the life sciences industry got its act together, a revised version was approved in 1998. That said, the directive remains controversial and a number of member states were extremely reluctant to implement it.
Anyway, the bottom line is that something will need to be done at some stage to clarify how European patent law should be interpreted. Whether this is through a Community patent, a pan-European litigation system, a series of directives or a combination of all of them, we cannot have a situation in which different parts of what is supposed to be a single market either do, or have the ability to, interpret patent law in completely different ways. If such a situation does persist, then the entire economic premise of the European Union is completely undermined. It seems to me that it is that serious.