Florian Mueller has also put out a position paper today on the consultation:

http://www.no-lobbyists-as-such.com/florian-mueller-blog/position-paper/

In general, the more different outline responses the better, so people can pick and mix bits and ideas they like, and stir in points of their own, so the variety and range of responses is magnified.

As in all such consultations, anything distinctive, personal, quantitative or anecdotal that anyone can add in their own response is particularly valuable -- the more different the responses are, but still on-side, the better.

Also recently released is the response of the German Patent Attorneys' association -- which basically says to the EU Commission, "get out of the way and leave everything to the EPO".

So particularly when answering Q1, it is valuable to emphasise that setting up a technocratic stand-alone authority -- whether the EPO or new patent courts -- and mandating that it's just left to get on with things is not viable.

Instead it is of value for the patent authorities to be subject to the overall European (Union) legislative, executive and judicial structures.

It's important to stress that the wider considerations the Commission flags up in Q1 *are* important. Questions do arise as to the proper interpretation of the Treaty -- in areas such as acceptable subject matter for patenting; or the required level of inventive step -- and a mechanism must be available for the legislature to have its say. Similarly questions can arise regarding the procedures of the EPO or the new courts -- are they ethical? do they reflect European standards of human rights? -- and these should ultimately be subject to the most senior European courts, the ECJ and ECHR.

The danger is that with the EPO and the EPLA, a patent structure will be created which is beholden to nobody.

The Commission is close to losing its nerve as to whether it should hold out for a ComPat style structure which is more integrated into the EU legislative/executive/judicial structure -- or whether it should just give up trying, let EPLA go ahead, and give up any EU-level influence on the patent system.

So a political point that needs to come out of this is that, yes the Commission should hold its nerve; there are important considerations that mean that the patent system should be tied in to other European legislative/executive/judicial structures; the Commission should not clear the decks of the issue and hand everything over to the EPO and a new parallel technocratic judicial establishment.

So it's worth not just quietly accepting Q1 in a "motherhood and apple pie" sort of way, but worth going further and saying "yes, this *is* actually rather important".

This might also be a point to suggest to eg MEPs too.

On the consultation more generally, a message we need to come through loud and clear is that cheaper, more simple, more powerful, more comprehensive routes to patent litigation and patent enforcement are not /necessarily/ a good thing, if they encourage bad (economically damaging) patents to be enforced.

Better ways to do litigation are only good, *if* efforts are made to clear the bad patents out of the way, to make sure that we're not just creating an extortionists' charter.

Key issues are more rigorous application of the subject matter test; and more demanding requirement on the question of inventive height. These are preconditions before making patents cheaper/easier to enforce. Furthermore, the EPO's track record in these areas, particularly in relation to software, is especially under-inspiring of confidence.

Finally (but leading on from the last point), whatever system is adopted for litigation, there must be clear, visible, confidence-inspiring separation between it and the EPO.

The courts are the main check and balance on the patent-granting policies of a patent office. The courts should be expected to examine issues with a much greater level of rigour.

To maximise the independence therefore, there should be no overlap between the administration of the patent judiciary and the administration of the EPO. Whereas it may be proper for the administrative council of the EPO to be selected from national patent offices, the council overseeing the judiciary should be selected from the structures which oversee the national judiciary.

Similarly, those selected to become judges should normally be experienced national judges -- they should not transfer there directly from the EPO; and they should absolutely not job-share their new role with any continuing role at the EPO.

Finally, the new courts should be directed to rigorously uphold the European Patent Convention, and approximate the existing case-law of the courts of member states; they should explicitly not be bound to follow the present case law of the EPO.

There are some very good features of the EPLA, and there are arguably some rather bad feaures in the previously proposed legislative arrangements for ComPat.

But there is real danger in the possibility of EPLA coming down the conveyor belt and being adopted without any more thought. (Something the EPO is notably lobbying rather hard for, and quite a lot of the rest of the patent establishment too).

When dealing with patents in the European Union, the new judges *must* be more explicitly tied to EU law, and EU judicial courts of final appeal.

There may also be some quite nasty issues hidden in the fine print of some of the langauge issues. (If you're say a Latvian SME, could you be sued over a patent only available to you in a foreign language, and furthermore have to defend yourself in proceedings entirely held in that foreign language. I need to do more reading to be 100% sure, but if that was the case it could be particularly SME-unfriendly).

Anyway, that's my instant braindump on the issue. Sorry if it's been a bit rambling and covering the same point several times some of the way!

All best,

James.

Malcolm Tyrrell wrote:

I finally get around to working on the patents questionaire and the very next day the FFII issue their guidelines for answering it.

Here's their page (I've haven't read it yet):

http://consultation.ffii.org/Introduction

Here's my attempt (just some sketched answers):

http://www.ifso.ie/cgi-bin/wiki.cgi/QuestionaireReponse

Good luck,

Malcolm.

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