The newly elected President of France, François Hollande promising "change". Will he be the first anti-patent campaigner governing an EU state?

Now that François Hollande took office as the new President of France after his marginal victory in the French presidential elections this May, he will now introduce himself to official EU policy on his first Competitive Council meeting on May 31/June 1. The draft agenda for this meeting (cf. item 19), reading “Draft agreement on a Unified Patent Court and draft Statute – Political agreement“, electrifies observers of and parties involved the ongoing European patent legislation saga (see also press release, middle of page 5).

In recent months the upcoming French elections brought the negotiations on the Unified Patent Court Agreement to a complete standstill, as the dynamics between the French, British and German heads of govenment and the general political climate is a crucial factor in this legislative process, especially since the only serious and realistic candidates for the attractive seat of the new UPC Central Division are Paris, London, and Munich and it is frequently announced through official channels that this question is the only remaining open issue.

The EU Council expressed already in January this year its believe that a final agreement can be reached in June 2012 (see official statement) and it was the President of the European Council, Herman Van Rompuy, who clarified in a recent letter that he hopes (or expects) the remaining issues to be sorted out at next week’s Competitiveness meeting:

“[...] This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council.”

But IP matters will not become easier in Europe with Mr Hollande, given his apparent openness to positions of critics of the current patent system. In fact, some of the answers (pdf) of Ms Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team, on a tendentious pre-election questionnaire of French anti software patent group “April” appear as if the socialist candidate for president (or his spokeswoman) was one of the ideological leaders of that pressure group:

The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.

Ms Pellerin’s further comments on behalf Mr Hollande regarding the European Patent Office
“The patent office must help fostering innovation, so that the public can enjoy the best of the patent system in areas where it is effective. It is essential that the patent office’s practice is consistent with what tax payers and the public expect of the patent system. [...] The situation at the European Patent Office is more worrying [than that of INPI, the French IPO]. The EPO is an intergovernmental organization of public international law, whereas the Administrative Council [of the EPO] appears to play an imperfect role. A reform of the control structures of the EPO appears to be required. The European Union as the major legislator of innovation policy in Europe should have more control.
… and, totally off-topic, regarding the future Unitary Patent Court
“I am unhappy with creating specialized courts entrusted to ”expert judges” from the group of patent attorneys. That would be detrimental to neutral judgments. This has already been found out in the US based on the patent chambers of the CAFC, who unwarrantedly extended the scope of patentability to sectors which the patent system was not made for. [...] It is unjust that patent offices and firms who should execute the industry policy as set by the legislator can exercise legislative power by defining this policy themselves. It would be even more unjust if they [the patent offices and firms] would obtain an judiciary equivalent to consolidate the patents they have granted. I hope that the Court of Justice of the European Union (ECJ) is the final arbiter of patent policy in Europe.

were not less disturbing as they are perfectly in line with the strategic plans of European anti-patent campaigners – as learned in the glorious days of their 2002-2005 fight against the proposed Directive on patentability of computer-implemented inventions and briefly summarised in this tweet – to first put the whole patent cosmos under the wings of the European Union and then exploit their – alleged – influence on the European Parliament to completely exclude any kind of software-related technology (including e.g. signal processing equipment, software-controlled devices and the like) from patentability, since, so their fairy tale goes, software always relates to conceptual (abstract, intangible) and mathematical issues and is not technical at all, thus setting back the understanding of the term “technical” to the age of the steam engine. This strategy is

As the French campaigners innocently argue on their campaign website that the coming EU Unified Patent Court and the EPO and its Boards of Appeal should be subordinate to European Union legal order, their real goal is to stop any European patent granting authority from granting what they call “software patents”. In Germany, groups like the FFII as well as representatives of the meanwhile well-established political power of the German Piratenpartei (see manifesto) likewise argue that the Unitary Patent might turn out to be a tool to facilitate legal acceptance of “software patents“.

Quite logically, the anti-software-patent campaigners of the April group now put their trust in François Hollande and roar at him “stop software patents now” in order to remind him to now “act against software patents and to bring up the flaws and the issues of the current unitary patent project”,  as Fleur Pellerin, now Deputy Minister responsible for SMEs, expressed before the elections.

Lionel Allorge, President of the April group, expresses his expectations on the French role at the coming Competitive Council in his own words:

“With this first Competitiveness EU Council, the French president and the government have a unique opportunity to act against software patents and on the legal uncertainties that threaten Free Software as well as many companies, especially SMEs and SMIs, by preventing them from innovating. [...] An overhaul of the entire European patent system is essential to avoid getting into a situation similar to that of the United States, in which millions of dollars are wasted because of an out of control patent system, and to ensure a democratic control over the patent system.”

I cannot help it, but isn’t the choice of words of and the issues raised by Mr Allorge very similar to what Ms Pellerin said to answer April’s pre-election questionnaire?


(Photo 2012 by Formosa Wandering via Flickr under a CC license)



About The Author

Volker 'Falk' Metzler

European Patent Attorney, German 'Patentanwalt', European Trademark and Design Attorney, Computer Scientist, PhD, IP Blogger, Father of Two, Mountain Enthusiast

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