European commissioner Charlie McCreevy set out his plan for a single approach to patents across the European Union on Thursday, ahead of an October 12 vote on the matter in the European Parliament, winning plaudits from some erstwhile opponents.
Previous attempts to introduce European legislation on patents, or to extend existing legislation to encompass software, have met stiff opposition.
McCreevy spelled out his two-track approach in a speech to the Parliament in Strasbourg, France, on Thursday. His ultimate goal is a single patent system across the EU, but he is also pushing for improvements to the existing patent regime, governed by the European Patent Office (EPO) in Munich.
The EPO sees two problems with the existing regime: the lack of a single jurisdiction for patents in Europe, and the prohibitive costs involved in translating the patents into all European languages. Its answer to the jurisdiction question is the European Patent Litigation Agreement (EPLA), which many opponents of patents for software-related inventions abhor. The EPLA would create one patent court for patent disputes in all countries that are members of the EPO, which include all 25 EU member states except Malta.
In his speech on Thursday, McCreevy appeared to take some of the EPLA opponents' concerns to heart.
"I recognise there are legitimate doubts and concerns" about the EPLA, he told members of the Parliament.
Florian Mueller, coordinator of a lobby group opposed to software patents, welcomed the commissioner's approach. Mueller's group helped defeat a proposed European directive last year that could have enabled patenting of software.
"During that long debate about the software patent directive, our concerns were always ridiculed by the Commission, making us out to be paranoid. Times seem to have changed," he said in a blog posting on Friday.
"McCreevy conceded that the proposed European Patent Litigation Agreement leaves a lot to be desired in its present form," he added.
Mueller, along with many other critics of Europe's patent regime from the open-source and free software communities, and members of the European Parliament from four mainstream political parties, believe that the plans for an EPLA will simply duplicate the approach to patenting championed by the EPO.
This regime has granted numerous software-related patents and is considered to be much more lax in the way it hands out patent monopolies than the national patent offices in individual European countries.
Opponents of the EPO object to the fact that the EPO would select judges from within its own ranks to preside over disputes, as they believe this will spread what they call the lax attitude to software patents to all EPO countries.
At a hearing in July hosted by the European Commission, EPO president Alain Pompidou called for the swift ratification of the EPLA, which remains a draft agreement.
"The draft European Patent Litigation Agreement must be submitted to an intergovernmental conference as soon as possible," Pompidou said then.
While McCreevy appeared to favour taking divergent views into account, he did stress the need for the EPLA in his speech.
Mueller took issue with that in his blog, pointing out that patent disputes rarely involve more than one country at a time. National patent courts are, therefore, sufficient to deal with the vast bulk of cases, he said.
"I don't mean to say that it's a perfect state of affairs if a company may have to enforce one and the same patent in more than one country at a time. But the current practice of sue-in-one-settle-in-all works quite well. About two-thirds of all EU patent infringement litigation takes place in Germany [about 900 cases per year], and in many of those cases the parties settle the dispute for the remaining European countries after a ruling or settlement in the first country in which they fight it out in court. That's pragmatic," he said.
The European Parliament will vote on whether to support McCreevy's approach to patents on October 12.