î
Catastrophe ou Reforme?
Development de la Politique de Brevet
Europ´eenne
Hartmut PILCH
http://eupat.ffii.org/ont
17 avril 2009
Il est devenu de plus en plus facile d’obtenir et faire respecter des brevets
sur echelle internationale. Cela ne sert pas au bien commun. Une l´egislation
surrepticespardespouvouirsjuridiquesetadministratifspro-brevetcontinue
a` accrotre la malaise et empˆecher sa correction. Pour r´eetablier des r`egles
´equilibr´ees et des proc´edures l´egislatifs affidables, il faut cr´eer une grande
alliances de multiples int´erˆet qui se met d’accord sur une s´eries de buts.
Table des mati`eres
1 Probl`emes 1
1.1 Court Terme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Longue Terme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Solutions 4
3 Comment les r´ealiser? 5
4 Resources 6
1 Probl`emes
1.1 Court Terme
2008 is poised to become the year of ratification of the repackaged EU Constitution
and of an agreement for a European Patent Court which would authorise cheap and
11 Probl`emes
efficient enforcement of software patents. The patent establishment will then have its
own patent court, by which it can decide the rules of patentability for years to come,
without having to fear embarassing parliamentary debates. Thanks to the IPR Enforce-
ment Directive 2004/48 and to forum shopping by rightholders, the enforcement will be
onerous, and thousands of ridiculous software patents granted by the EPO will become
sharpened ticking bombs that destroy entrepreneurship and employment in a manner as
has already happened with the Vistaprint patent.
NeitherourCallforaLeanandDemocraticPatentSystemnorourEuropeanPatent
Conferencenorotherinitiativeshavesofarachievedsufficientmomentumtomakemuch
of a difference.
1.2 Longue Terme
In the long run, the system is facing severe challenges and possibly decline. The
European Patent Office (EPO) itself has eloquently expressed this thought in its 4
Scenarios report.
– Thepatentsystemistodayworkingasabrakeratherthanastimulusoninnovation
in many fields
– The copyright system has shown its value for promoting software development, in
spite of a widespread belief that copyright is made for the aesthetic and not for
the functional arts.
– The concept of patent is narrowly defined and not pliable.
– A patent is a codified right to exclude others from implementing an idea which
you were first to find or register
– The period is set to 20 years and the rules are basically the same for “all fields
of technology”, i.e. an inflexible obligatory “one-size-fits-all” system.
– Unlikecopyright,patentscovertheindependentworkofotherpeople.Theclaims
ofpatentsarebroad,limitedonlybytherequirementofnoveltyplusafewother
(mostly dysfunctional) constraints.
– Obtaining a patent involves high costs for the applicant : (1) publication of
business secrets (2) search of prior art, claim drafting, application procedures,
litigation.
– Otherplayershavetomonitorthousandsofpatents.Itiscostlyifnotimpossible
to avoid infringing on existing patents. Patent litigation, once it occurs, tends
to put smaller companies out of business.
– The costs of legal insecurity and licensing fees have been rising continuously, so
that even the large companies are complaining.
– Theproblemsofthepatentsystemareaggravatedbyanexplosioninthenumber
of patents. Globalisation brings in more and more players, e.g. from countries
such as China and India.
– With the progress of science and technology, much of the costly empirical re-
search work has been successfully accomplished already. Much of today’s inno-
vationtakesplaceinareassuchasprogramming,basedonwell-knownmodelsof
nature, where, even though the effort behind each individual innovation is very
21 Probl`emes
low, the blocking effect of the concerned patents tends to be high. Typically
such innovations can be described as “business methods based on beginner’s
knowledge of natural science”. Previously it would have been possible to sort
themoutbecausetheyarenot“technicalinventions”(i.e.tonotenrichthestate
of knowledge in natural science), but the patent world is reluctant to use this
concept today, fearing that it would lead to a dramatic reduction in the number
of granted patents.
– The patent system has never proven its usefulness as an instrument of economic
policy. The doubts of economists about the patent system have never been refuted
but only swept aside.
– The patent system was introduced in Germany in 1877 “by lawyers and protec-
tionists, against the will of the economists” (non-literal quote, to be verified), as
Fritz Machlup, the leading economist and historian of the patent system wrote
in a report for the US Congress in 1958.
– Government-orderedreportsbyeconomistsinAustraliaandCanadainthe1970s
and80swarnedthatthepatentsystemwouldnotpromoteinnovationandshould
berolledbackoratleastnotextendedtonewfieldssuchasgeneticsorsoftware.
Yet, only a few years later, the patent offices of the same countries announced
extensions of patentability toward genetics and software.
– The patent system tends to become an unreformable state in the state.
– Patent officials, patent judges and patent lawyers from the large corporations
tend to form a closely-knit, powerful and rich community of gurus who are used
to setting policies among themselves and who do not tolerate interference from
outside.
– the European Patent Office is a state-like entity which unifies the legislative,
executive and judiciary powers in one
– the EPO and other patent offices have enormously grown in staff. They are
obliged to feed many thousand examiners and they live on the fees for the
patents which they grant.
– Evenveryconservativereformproposals,suchasthedemandthattheletterand
spirit of Art 52 EPC should be respected, have met extremely fierce resistance
from the patent establishment. The European Parliament’s majority proposed
clarifications to the patentability rules in september 2003 and july 2005 which
werebrushedasidewithoutdiscussionbytheministerialpatentofficials.Inorder
to impose their own positions on the EU, these officials acted against explicit
decisions of their national parliaments and even broke the procedural rules of
the EU Council. They used rhetoric which was misleading in many ways.
– Contrary to widespread popular belief, the patents granted by the European
Patent Office and most national patent offices in Europe are not significantly
better in quality than the American or Japanese counterparts. In the long run,
Europe is even worse off than the other two big patenting powers, because its
patentsystemactsataninternationallevelwheredemocraticcontrolsareweaker
and once taken decisions more difficult to correct.
32 Solutions
2 Solutions
– National parliaments should legislate to clarify meaning of (their national version
of)Art52EPCinthesenseapprovedbythemajorityoftheEuropeanParliament
in 2003 and 2005 (e.g. according to the Ten Core Clarifications or Two Rules, a
deletion of the redundant “as such” clause might also suffice)
– Debureaucratisation of patent examination by introcution of Polluter Pays Prin-
ciple : whoever has demonstrated a patent to be invalid can charge a reward for
his research efforts from the polluter, i.e. the patentee, in much the same way as
the patentee can charge compensation from an infringer. The patentee thereby
incentivised to apply for narrow claims based on real inventions. Patent examina-
tion thus is no longer obligatory; instead, it becomes a private insurance service,
performed at the request (and expense) of the patent applicant. This reform can
be adopted by national parliaments.
– NationalparliamentsmustmakeitspositionsonEuropeanpatentpolicyclearand
findwaystoensurethattheircountry’srepresentativesintheCouncilofMinisters
really work for these positions
– Further “patent harmonisation treaties” (e.g. ACTA, SPLT) must be avoided; the
nation states and/or the European Union must retain the possiblity to adapt the
system to changing needs
– TheEUshouldbuilditspatentsystemfromgroundup:createitsownsmall-scale
patent office and its own substantive law, e.g. by means of a Council Regulation
thatcopies&pastestheEuropeanPatentConvention;theEUPatentOfficeshould
work like the Alicante Trademark Office; examination work should be outsourced
to other organisations, including EPO and national patent offices
– The European Union must /not/ become a signatory “state” of the EPC/EPOrg,
as that would mean an extra layer of undemocratic lawmaking; rather, the EU
memberstatesshouldwithdrawfromtheEuropeanPatentOrganisation;theEPO
should become one of several service providers on the patent examination market
– The EU should not build any central patent courts; as written above, there is no
real need for an official stamp of approval on granted patents, and for post-grant
jurisdiction, as for all other civil and penal jurisdiction, the supreme national
courts must be the last instance; rationalisation must be sought through judicial
cooperation and democratic lawmaking rather than through quasi-legislation by
centralised courts; Centralised courts lack the legitimacy that can come only from
a proper constitutional order.
– When a standard has been created according to certain procedures (e.g. those
used by ISO, IEC, IETF, W3C etc), all involved patents must be available under
reasonable license terms that do not exclude free/opensource implementations;
patentees who do not explicitely participate in the standardisation process must
lose any rights which they may have had with regard to the standard.
– To gain flexibility for reform of the IP system, adherence to the TRIPs treaty
shouldnolongerbeaconditionforWTOmembership;amoreflexiblereplacement be found, otherwise withdrawal from WTO should be envisaged.
43 Comment les r´ealiser?
– Replacement of the patent system with a copyright-like “fast, cheap, narrow” IP
rightandpossiblyasetofsuigenerisrightswithin30years,accordingtoaschedule
of stepwise transition. Copyright and Patents could be integrated into one system.
There coul