NEWS
Advocate General: new EU patent system is incompatible with EU law
Google predicts lawsuit casualties
Google has called the patent and copyright infringement complaint filed by Oracle America an “attack” on open-source soſtware.
Oracle’s August 13 lawsuit alleges that Google’s Android, used in mobile phones, infringes patents relating to the Java platform, a technology that allows applications written in the Java programming language to be deployed on servers, desktop computers and mobile devices.
Oracle also believes that Android infringes the copyrighted subject matter of its Java platform, including code, specifications and documentation.
A Google spokesperson described the lawsuit, filed in the US District Court of the Northern District of California, as “baseless”. Open-source soſtware is more important than any single corporation, he said.
“We will strongly defend open-source standards and will continue to work with the industry to develop the Android platform.”
The patents were originally owned by Sun Microsystems, but Oracle Corporation purchased the company in January, renaming it Oracle America.
It hopes to be awarded damages and expects injunctive relief to end the continued acts of infringement it believes Google and others are committing.
The complaint states: “[Oracle requires] an order permanently enjoining Google, its officers, agents, servants, employees, attorneys and affiliated companies, its assigns and successors in interest, and those persons in active concert or participation with it, from continued acts of infringement of the patents and copyrights at issue in this litigation.”
Te source code of the Android platform is freely available to soſtware developers. Google manages contributors and builders of compatible devices during each update of the Android platform.
10 World Intellectual Property Review September/October 2010
www.worldipreview.com
Te creation of an EU patent litigation system and a new Community Patent may be delayed by the European Court of Justice (ECJ) aſter Advocate General Kokott rejected the draſt agreement that would form its basis.
Opinion 1/09, a July 2 draſt, disagrees with the compatibility of the agreement with EU treaties.
Te overall framework of a unified system was agreed by the EU Council in late 2009. Tat would enable a new pan-European patents court to be set up to hear patent disputes and authorise the European Patent Office to grant a new EU-wide patent (commonly known as the Community Patent).
Kevin Mooney, a partner at London-based Simmons & Simmons, noted several reasons for the negative recommendation. Tese include concerns that the linguistic system proposed—a trilingual central registry with English, German and French as the official languages—might prejudice the rights of the defence.
According to Mooney, the opinion also states that the draſt agreement on a unified patent and litigation
system makes insufficient guarantees to ensure full implementation and respect for the rule of EU law.
Alan Johnson, a partner at London-based Bristows, said: “What is particularly dispiriting is the number of issues on which the Advocate General’s opinion is negative.”
Te ECJ’s role in a unified patent litigation system may be a cause of particular concern for users of the new court system.
Johnson said: “Tere is a clear suggestion in the opinion that the ECJ should act as an appellate court on points of law. A fundamental change to the agreement by introducing a bigger role for the ECJ, not just ensuring the primacy of EU law, but also to rule on substantive patent law, would be very problematic.”
Due to disagreement among the member states of the EU as to the legality of the draſt agreement, the EU Council requested the opinion of the ECJ under Article 300(6) of the EU Treaty. Tis allows the advice of the ECJ to be sought when the compatibility of draſt international agreements with current EU law is under question.
Te ECJ is under no obligation to follow the Advocate General’s opinion, but there are fears for the unified patent litigation system and Community Patent if it does.
Te ECJ is expected to provide its opinion on the agreement before the end of 2010.
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