Brussels, 13 May 2008 — European Commissioner McCreevy is pushing for a bilateral patent treaty with the United States. This Tuesday 13 May in Brussels, White House and European representatives will try to adopt a tight roadmap for the signature of a EU-US patent treaty by the end of the year. Parts of the proposed treaty will contain provision on software patents, and could legalise them on both sides of the Atlantic.
"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.
Agenda Meeting objectives for 13 May 
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.
- 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
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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.