Digital Majority

The big industry, gathered inside a club named Trans Antlantic Business Dialogue, is lobbying the European Commission (McCreevy and Verheugen) and the American Department of Commerce (Carlos M. Gutierrez) to sign a bilateral treaty on harmonisation of patent law between the developed countries, which will probably not include the european exclusion of computer programs, thus provide a legal base to overhide the failure of the software patent directive in 2005.

According to IP-watch, the B+ Group has been created recently outside of WIPO:

The wealthy members of the World Intellectual Property Organization (WIPO) have created a draft patent harmonisation treaty to be negotiated outside WIPO in the hope of removing basic differences in national and regional practices. But while the countries say they have the momentum and political will to change their laws, the draft text obtained by Intellectual Property Watch shows that substantive differences remain.

The draft patent treaty text, drawn up by the United Kingdom, and based on several pre-existing documents, shows there is substantial work left to do to bring the so-called Group B+ members to accord. The group follows WIPO structure, where developed nations act collectively as Group B, plus additional countries represented at the European Patent Office.

The current draft does not contain the exclusion of computer programs:

http://www.ip-watch.org/files/Group%20B+%20Chair's%20Draft%20Nov.doc

• Develop a globally reliable patent system;
• Harmonise EU and US patent systems based on the "first-to-file"- system;

Intellectual Property Rights

BDI Assessment:

• We appreciate that the U.S. and the EU are willing to drive the issue of patent law harmonization forward. We support intelligent moves that can bring the two systems closer together.
• The first-to-file system is our main concern, as this system significantly increases the legal certainty for the users of the patent system worldwide.
• The damages caused by counterfeiting and piracy have increased dramatically. IPR protection also relies on effective enforcement.

BDI Position:

• We observe that in the U.S., there are ongoing discussions on a fundamental reform of the patenting system.
• We should use this window of opportunity to step up the issue of international patent law harmonization by adjusting the systems in the U.S. and Europe, in particular by implementing the first-to-file system in the U.S. We understand that due to different legal traditions both sides have to face far-reaching compromises. For the sake of harmonization and for the benefit of industry worldwide both sides should stay open-minded in the ongoing negotiations.
• We should intense our discussions on the 18-month grace period. German Industry is critically positioned to it. It is a risk for the legal certainty.
• A publishing duty of the Patent Office after a period of 18 months is also necessary for legal certainty.
• We wish to strengthen the cooperation in the international fight against counterfeiting and piracy.

Current Developments:

• In April 2007 the U.S. Congress introduced a bipartisan bill on reforming the U.S. patent system ("Patent Reform Act of 2007"). Among many other important reforms, the bill would create a pure "first-to-file" system.

BDI Position:

• We welcome the efforts of the U.S. Congress to reform the U.S. patent system. The realization of the "Patent Reform Act" would bring needed clarity and certainty to the U.S. patent system and facilitate international harmonization.

Intellectual Property Rights:

Prevent the Erosion of Intellectual Property Rights: As globalization continues, the global competitiveness of the transatlantic market will depend on innovation and development of new technologies made possible by our highly skilled knowledge economies. The US and EU face a major challenge in addressing calls from those who do not respect the concept of intellectual property — a fundamental pillar of the transatlantic economy. In the 2007 Framework, the Summit Leaders recognized the critical importance that intellectual property and innovation play in economic growth. We need an interdisciplinary approach to bring together IP experts, sectoral interests and innovation and technology policy advisors, in order to develop a common transatlantic strategy to prevent the erosion of intellectual property rights.

We call on the TEC to establish a forum composed of EU and US representatives (including IPR experts) together with industry for the purpose of regular discussion of intellectual property protection, with a remit to work on preventing the erosion of intellectual property rights in third countries and/or through actions of international organizations.

Patent 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.

They will agree on a roadmap on the 13 May meeting in Brussels:

Issues to be Noted by the TEC:

• Air Services: Joint statement on second phase of negotiations.
• Secure Trade Partnership Programs : Report on implementation of roadmap.
• Suppliers Declaration of Conformity : U.S. FCC report on use of suppliers declarations of conformity for certain products.
• U.S.-EU Investment Dialogue : Issue EU-US open investment statem ent and endorse outcomes of dialogue.
• Animal Testing for Cosmetics : Note progress towards validation of alternative testing methods.
• Patent Law Harmonization : Agree on roadmap.