Severe power abuse of the EPO

On the international level we often face a situation that basic principles of good governance are dropped. One of these principles is the Separation of Powers (de Montesquieu). 30 March the EPO lobbied the European Parliament, an "EPO Information Day" at the European Parliament. I know that such a kind of pratice is quite common, esp. in the field of development policy and during the transition of new member states from Eastern Europe. But we do not have to accept common malpratice. It is strange but on the international level we have to fight for basic governance principles and rights we already took from the crown centuries ago. The EPO lacks a mandate to lobby the lawmaker or Parliament. Normative development of law exceeds the competence of this institution. Alain Pompidou's action fits very well to the pattern of a "horse rides rider" scenario. We have to be very concerned about this development. Shall I add that Mr. Sant from the EPO who organised the meeting was reluctant to answer my letter to him? Instead of solving the problems caused by the EPO and bowing down to the democratic will the EPO tries to influence the lawmaker and exceeds its competence. In his presentation Alain Pompidou describes the role of the EPO like this

The EPO manages the workflow from idea to invention, from invention to innovation
and from innovation to the market place"(Alain Pompidou)

This is not true. The EPO is responsible for granting patent applications only. And he further adds general reasons why he believes patents were important:

• patents are the most important transmission belt for the transfer of technology
• patents constitute the largest technology data base: They make technology transparent and inform about technical progress
• patents reward investment into innovative solutions: they secure return oninvestment
• patents support economic growth and employment

I can partially agree with him, but I do not believe that it was the role of Mr. Pompidou to promote a specific legal system or tell Parliament why it was important. Mr. Pompidou's organisation is just a body who professionally examines patent applications and grants them. It is not his/their role to educate us or the lawmaker why they were good or bad. It is not the role of the executioners to tell us why or whether to apply death penalty. From an economist's viewpoint patents are nothing more than an incentive system. They are used as an instrument of economic policy, restrict the free market in order to reach certain effects. Such a sober view has nothing in common with superficial arguments Pompidou puts forward.

Other remarks of Pompidou relate to the Lisboa process, a kind of vapour EU strategy for the "most competitive and innovative" economy of the world. Pompidou tries to introduce general effects magically associated with patent law and breaks the instrumental view. But regarding the EPO's self-interests he draws back to a servile point of view, spreading the fiction that the EPO just obeys to the law.

The EPO has the task to grant patents in all areas of technology. It has to apply the provisions of the European Patent Convention in all cases. Dealing with computer-implemented inventions we have to implement the EPC, and the case law developed by the independent judiciary of the EPO.

He is 100% right, but many scholars e.g. Prof. K.F.Lenz strongly criticised the current EPC interpretation of the Technical Board of Appeal. (for English readers: Lenz concludes that the Technical board of Appeal exceeded its competences with its reinterpretation of EPC 52.2 and the 52.3 "as such"-clause). Many European Courts did not follow the EPO line but the EPC. The EPO has to implement the EPC, and EPC 52.2 excludes programs for computers from patentability.

While the EPO is not in the position to change the law or the EPC but bound to it, the lawmaker is free to stop legal escape. Formally case law and the opinions of the EPO are irrelevant for that decision. Pompidou admits:

If the law is changed, or new law introduced by the legal system of the EU, the EPO will adjust its own law accordingly.

But if it was so, why does the EPO lobby Parliament? The EPO and Mr. Pompidou have to abstain influencing the lawmaker.

Mr. Pompidou denied that there were software patents. The general public including MEPs know it better, and the GAUSS-extracts from the "largest technical documentation database" prove us the opposite. Empirical evidence that cannot be denied, so Pompidou did it anyway. Previous to the EPO lobbying event the FFII wrote a nice warning letter to MEPs where Jonas Maebe took a similar position:

The EPO lobbying politicians to promote software patents is a bit like
some Department of Housing promoting the handing out of more building permits. We hope our letter and its annexes can give MEPs more balanced information than the EPO's simplistic oneliners like "Idea + Patent = Innovation". Economic policy making should not be based on unfounded claims by the EPO and emotional pleas by its largest customers, but on sound economic evidence and the desires of the involved sectors as a whole.