European Commissioner Charlie McCreevy has acknowledged that there are "legitimate concerns" about proposals to create a pan-European patent litigation system.
Addressing the European Parliament's plenary session on Thursday, McCreevy said industry is not happy with either the proposed Community Patent system or the EPLA (European Patent Litigation Agreement).
Neither proposal, he acknowledges, is a panacea.
"I am aware of some critical voices against the EPLA," he said. "I recognise that there are legitimate doubts and concerns – the cost of litigation under the EPLA, the impact of the rules of procedure which we have yet to see, the independence of the EPLA judges from the EPO."
But he argues that some sort of consensus across Europe is needed.
"We need to find a unified system which provides judicial independence, gives clarity and reliability to patent users, while avoiding both over-centralisation and fragmentation.
"I am convinced the best way to confront these problems is by engaging actively with the process and by securing an outcome which is satisfactory and fair to all concerned and which is in full conformity with EU law."
Florian Mueller, ardent anti-software patent campaigner, argues that even this might not be enough. He challenges McCreevy's view that there is a pressing need for change in the European patent system. In his blog he writes:
"I don't think 'full conformity with EU laws' is enough to address, let alone to alleviate, the institutional concerns raised by key MEPs."
While McCreevy would like a single pan-European body for resolving disputed patents, particularly those which are being fought in more than three states, Mueller argues that such a body is unneeded and would in fact be counter productive, paving the way for patents to be granted on software.
The EPO, he notes, processes in the region of 180,000 patent applications every year of which around half are granted. Across the EU, there are fewer than 1,500 patent litigation lawsuits in progress. Of these, somewhere between 75 and 150 involve more than one jurisdiction.
Because the current system (sue in one state, settle in the others) works reasonably well, most of the time, the motivation for creating a pan-European system must be something different.
Mueller says: "I believe all this talk about streamlining the system is primarily a pretext, and the actual motivation is to create a court system that supports the EPO's excessive granting practice and the patent inflation that has resulted and continues to result from it. And that, unfortunately, includes software patents." ®