This document summarizes some of the Eurolinux Alliance's points of concern with regared to the proposal of Rule of the Council, presented by the Commission, on the community patent, document numbered 2000/0177 (CNS), COM(2000)412 FR final.
The purpose of the directive is to create a community patent to be filed only once for all of the member countries of the European Union (EU).
This community patent is likely to supersede and replace all national patent systems in the EU, although it is stated in section 2.1 that all systems (national, european, and communautary) will coexist. In particular, section 2.2 states that the community patent leaves no freedom of interpretation to jurisdictions of the member states, which ensures the patent holders that once a community patent is granted to them, national jurisdictions will not be able to limit their claims.
The proposed mechanism for implementing the community patent is to declare the European Community (EC) as a member state of the European Patent Office (EPO), and let the EPO deliver these community patents in the form of european patents valid only in the EC (of course, these can also be filed simultaneously for other non-EC states which are members of the EPO, as stated in section 2.4.6).
By nature, the community patent is strongly linked to the EPO. It is clearly stated in section 2.3 that it is designed to be in symbiosis with the european patent system. In fact, as stated in section 2.3.1, the community patent will be a european patent, restricted to the territory of the EC. Therefore, as stated at the end of section 2.3.2, it is the EPO that will grant community patents, based on its own rules and jurisprudence. It means that the EC will subcontract the examination and granting of community patents to a body that it does not control. Moreover, in section 2.4.5.2, it is clearly stated that the decisions of the EPO could not be appealed to the community jurisdiction to be created. As the EPO is its own board of appeal, it means that decisions of the EPO could not be amended.
It is also stated in section 2.3.2 that the possibility for the EPO to grant community patents can be made part of the renegotiation of the European Patent convention (EPC). However, the EPO board already tried to subvert the renegotiation process, which began on November 2000, by attempting to rewrite articles 33, 52, and 53 of the EPC with the purpose of further removing outside control of the EPO's practice as well as current limitations of its field of endeavour. Therefore, great care should be exercised before granting the EPO more power, as it abused it in the past, for instance by deliberately changing its jurisprudence on software, business method, and biotechnology patents.
The expansive patenting practises of the EPO regarding biotech and software seem to be confirmed by this text, as in the end of section 2.3.3 it is stated that all EC member states should homogeneize their positions with respect to the position of the EPO. Knowing that member states have only limited control on the EPO (through delegates in the administrative council) and that these delegates have allowed the board of the EPO to enact examination rules that encourage the patenting of genes, computer programs, mathematical methods, business methods etc, it is likely that this homogeneization is supposed to be clearance for the EPO to go on with its abusive patent granting.
Moreover, the first item in the third paragraph of section 2.3.4 explicitely states that all modifications of the EPC that will take place before the adoption of the community patent will apply to the community patent. If the board of the EPO succeeds in further legitimising its expansive patenting practise, e.g. by amending art 52 EPC, the community patent will have to comply with all EPO practices.
In this text, the scope of patentability is not defined, since it is just said in section 2.4.2 that community patents are granted for inventions, of products or processes, provided that they are new, imply an inventive step, and be susceptible of industrial application. The concept of invention can be understood to imply a restriction to technical inventions and an exclusion of items such as those listed in Art 52(2) EPC. But in this text, no such hint is given.