[Wolves] No European patents? (The EPO/EU For Dummies)

chris procter chris-procter at talk21.com
Tue May 30 15:31:49 BST 2006

> On 30/05/06, Stuart Langridge <sil at kryogenix.org>
> wrote:
> > On 5/30/06, Kevanf1 <kevanf1 at gmail.com> wrote:
> > >
> > >
> > > Is this turn around for real?
> >
> > Looks like it. Everyone's a bit confused, though
> :)

I was hugely confused by this but after a bit of
research (thank you David Chan and Google) this is my
beginners guide to European software patents and what
todays news means (but remember kids, IANAL, and I
didn't know any of this until about 2 hours ago so I
may still be deeply confused or just plain wrong):-

The European Patent Office (EPO) is not part of the EC
but is a completly different body (according to their
website "[The EPO] currently has 31 member states,
comprising all the member states of the European Union
(except Malta) together with Bulgaria, Iceland,
Liechtenstein, Monaco, Romania, Switzerland and

The EPO grants patents, including software patents
(with some restrictions).

The EPO doesn't grant you a "European patent", but
instead a bundle of 31 patents, one for each of the
countries who signed up to the EPO.

To appeal a patent you first go to the EPO tribunal
and then can appeal to the national courts of a
signatory country which can invalidate it in that
country but not in any of the others.

Patent law in each country differs so a patent that
the High Court deems improper in the UK might be
perfectly fine in France say.

This can lead to "European" patents that are only
valid in some of the countries the EPO covers
(conceivably it could be valid in none of the EPO
countries which is somewhat bizare).

It also means that to overthrow or defend a patent
that you have to go to court in 31 different court and
legal systems.

This is a mess.

The EU is moving to create a Community wide patent
system to unify patent law in all member countries,
and to allow the EPO to issue a single "Community
patent" that would be valid EU wide and defended under
EU law (rather then a UK patent under UK law, a French
patent under french law etc). 

This would mean the European Court Of Justice (which
is part of the EU) would be the final arbiter of

It seemed EU would codify current EPO rulings into EU
law forcing the ECJ to uphold them, bringing software
patents in by the back door. 

However this answer explicitly states that "the ECJ is
not bound by the case law developed by the EPO and is
free in its interpretation of the provisions of the
EPC [once this all becomes law]" and "patents granted
for a subject matter (such as computer programs),
which is excluded from patentability [...] may be
invalidated in a relevant court proceeding"

So while the EPO may still allow software to be
patented it could be invalidated EU wide in a single
case at the ECJ, and in practice the EPO would
probably have to fall into line with EU law.

Alternativly the ECJ could uphold a software patent
Community wide if it interpreted EU law as allowing it
(although the European Parliment have voted against
them twice so this seems less likely).

This doesn't mean that software patents will not
happen, its still at the draft proposals stage for a
start, but it does seem to be a shift away from them.
A victory but not the end of the war.

I hope that helps. Writing it has certainly explained
a lot to me :-)


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