The Communication does not intend to discuss the relative merits of formal industrial property rights and alternative business models such as open source software or trade secrets, but focuses on the industrial property rights themselves.
Commission wants a clear regime for patents in Europe, but at the same time does not want to clarify the exclusion of computer programs from the field of patentability:
A clear regime for intellectual property rights is an essential condition for the single market and in making the "fifth freedom", the free movement of knowledge, a reality. This may also contribute as part of wider policy to finding solutions that could address global issues of increasing significance such as climate change, the ageing world population, and a possible energy crisis.
Commission also mixes tangible and intagible property, which follows different economies of distribution and usage:
Property, whether tangible or not, is crucial to the operation of a market economy.
For some actors of the patent market, patent rights are an end in themselves. Policy needs to assess much more precisely the trade-offs that allows consumers to suffer from monopolies artificially created by those rights.
Despite these benefits, industrial property rights are not an end in themselves. Policy needs to consider the trade-off between offering an exclusive right and the diffusion of new products and processes in order for industrial property rights to continue to produce economic and social benefits in the future.
A decoration to calm down software patents and business method critics:
The EPO has "raising the bar" as a strategy concerning its future workload, and patent offices in Europe should work together, e.g. by mutual exploitation of work to maintain high quality rights and avoid patents being granted in fields which are not patentable such as software and business methods.
Commission supports patented and royalty bearing standards
Rules within standard-setting organisations may specify an ex ante (i.e. before a standard is set) duty to disclose essential patent applications and/or issued patents or a duty to offer commitments to license the essential patents on fair, reasonable and non-discriminatory (FRAND) terms . Some bodies have also adopted rules whereby holders of potentially essential technologies to a standard declare maximum royalty rates that they would charge were their technology selected to become part of the standard. The Commission encourages European standards organisations to make these policies effective."
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Patent judgments valid from one member state to another, a first sign of loosing faith in the possibility of EU-EPLA or Compat?
Where a court has held that intellectual property rights have been infringed, enforcement of the judgment or order should not pose significant difficulties for the rights holder. The Commission is considering how cross-border enforcement can be simplified as part of a review of the Brussels I Regulation.
One of the elements envisaged is the abolition of the exequatur requirement53 as a pre-condition for enforcement of a judgment from another Member State.
The Commission will
- ensure a full transposition and effective application of the Enforcement Directive 2004/48/EC
- consider how cross-border enforcement of judgments can be improved in its review of the Brussels I Regulation.
TEC, or another closed-doors forums to legalise software patents
In the Transatlantic Economic Council, the Commission will work with EU Member States to establish a way forward in international patent law harmonisation.
Substantive patent law harmonisation would simplify patent processing, facilitate greater work sharing activities between patent offices, and could ultimately lead to mutual recognition of granted patents between offices. Europe has the responsibility to ensure that high quality standards on patentability are also part of multilateral frameworks.
The Commission will work with EU Member States towards international patent law harmonisation in the negotiations for a Substantive Patent Law Treaty and in the Transatlantic Economic Council.
At a bilateral level, all trade agreements under discussion include specific chapters on IPR.