http://www.edri.org/edrigram/number6.10/software-patents-eu

http://www.iam-magazine.com/blog/Detail.aspx?g=bd5ea18d-c8df-4ceb-b924-ed7599c161e6

On the European side, the role of the EPO will need to be clarified in any on-going discussions as it is not an EU body, but a completely separate organisation.
If anything were to be agreed, it would also prove politically controversial on both sides of the ocean. In the US, many critics of the Patent Reform Act complain that it aims to Europeanise the US patent system in a way that would harm business’s ability to innovate; while in Europe, any moves towards closer co-operation with the US will be seen as an attempt to bring in things such as software patents by the back door.

http://www.iam-magazine.com/blog/Detail.aspx?g=bd5ea18d-c8df-4ceb-b924-ed7599c161e6

One arena where this is currently being played out is a the World Intellectual Property Organisation’s negotiations to finalise the Substantive Patent Law Treaty (SPLT), intended to encompass rules regarding the scope of patent (their subject matter), exclusions and rules for deciding between competing claims. The key elements that are to be harmonised by the SPLT (if an agreement can be reached) are: the establishment of patentability (to limit or remove national interpretations of the criteria for recognising a qualifying invention); the determination of the characteristics of an ‘invention’ for the purpose of patenting (to remove the ‘technical’ aspect, expanding the scope of patents to include, for instance, ‘business methods’, software and ‘research tools’ such as Expressed Sequence Tags in genomics); and the scope of patent protection (to reduce the possibility of using environmental or public health criteria for limiting grants otherwise covered by patent criteria). The SPLT is intended to set a clear limit on any further limitations that national legislatures might regard as a political response to local problems and issues. If the SPLT was to be ratified, for those states that signed, governments’ ability to shape their patent law to their specific circumstances will be further circumscribed (and if gets to this stage significant bilateral pressure surely will be applied to ensure accession).

During the seventh, eighth and ninth sessions of the SCP, held from May 6 to 10 and November 25 to 29, 2002, and May 12 to 16, 2003, further revised drafts of the SPLT were discussed. Following proposals by a number of delegations, the contents of the draft SPLT was progressively broadened. While the SCP agreed in principle on a number of issues, such as the scope of the SPLT, the right to a patent, novelty, inventive step/non-obviousness or the requirement of sufficient disclosure, some provisions, such as patentable subject matter or the exceptions to patentability, raised concerns about the available flexibility in respect of national policies, recognized under current international treaties.

"Talks in the Transatlantic Economic Council (TEC) are the current push for software patents. The US want to eliminate the higher standards of the European Patent Convention. The bilateral agenda is dictated by multinationals gathered in the Transatlantic Economic Business Dialogue (TABD). When you have a look who is in the Executive Board of the TABD, you find not a single European SME in there", says Benjamin Henrion, a Brussels based patent policy specialist.

TEC which comprises EU and US high level representatives put a substantive harmonisation of patent law on its agenda. Substantive patent law covers what is patentable or not. The attempt to impose the low US standards on Europe via the Substantive Patent Law Treaty (SPLT) process utterly failed at the World Intellectual Property Organisation. Also progress in the WIPO B+ subgroup (without developing nations) could not be reached. Now the TEC is used as a new forum to push forward with lowering patentability standards through the back door. The TEC is a closed process, and sits outside the WIPO multilateral treaty talks. Since WIPO participants Brazil, India, and China began to fight EU-US proposals for ever more aggressive patents, the EU and US have begun their own bilateral talks.

The main difference is that the TEC is a trade process. The use of free trade talks to change patent laws has precedence. In the GATT negotiations the United States diverted a Free Trade process to blackmail trade partners to accept the TRIPs treaty that limited flexibilities of their national patent law.

In 2005, the EU Parliament did not want to make software patents enforcable in Europe after massive opposition from citizens, small European software businesses, parliamentarians of all sides, and civil society. The United States and US stakeholders intervened without success in internal matters of the EU in favour of software patents. In the same year the Indian parliament resisted the US pressure to change its patent laws. The US diplomacy insisted in India on alleged TRIPs obligations to permit software patenting.

Commissioner McCreevy's home constituency, Ireland, is the main base in Europe for large US software firms who repatriate most of their EU profits as licenses and "patent royalties" without paying taxes in Europe. In his former government office McCreevy build the Irish tax-free harbour.

FFII President Alberto Barrionuevo adds: "The European Union does not have a Community Patent, neither a substantive patent law in its acquis, except the biotech directive. As long as there is no substantive patent law in the EU, it is quite silly to discuss about a bilateral patent treaty with the United States. Its like a blind showing the way for a deaf. If the USA really wanted to fix their patent practice they should first switch to first-to-file and join the European Patent Convention."

Meanwhile, according to reliable sources within the EU a confidential and dedicated Working Group inside the European Council of Ministers has been created to discuss this proposed patent treaty. The agenda and terms are put forward by the United States whose patent law does not meet European standards.

Background Information

Agenda Meeting objectives for 13 May [1]

Patent Law Harmonization : Agree on roadmap."

WhiteHouse: Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union:

Cooperate on improving the efficiency and the effectiveness of the patent system at the global level to promote innovation, employment, and competitiveness, and seek progress in the harmonisation of the different patent regimes;

TABD: Transatlantic Business Recommendations for Action by Transatlantic Economic Council:

Patent Law Harmonization: The TEC work program needs to specify the step-by-step plan proposed for progress on convergence of US and EU patent regulation. We understand that the US put forward a roadmap proposal at the end of January, but it is not clear what, if any, are the agreed milestones for the roadmap going forward.

Links

• Transatlantic Economic Council: objectives for Spring 2008 meeting
• WhiteHouse: Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union
• TABD: Transatlantic Business Recommendations for Action by Transatlantic Economic Council
• IP-watch: Draft treaty text available (with a sensitive part marked as "reserved")
• European Commission: Transatlantic Economic Council
• IP-watch: Group B+ Draft Patent Harmonisation Treaty Emerges
• Permanent link to this press release

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.