For the hearing of De Gucht, read the transcript of his hearing here:

http://www.europarl.europa.eu/hearings/static/commissioners/cre/de_gucht.pdf

Bernd Lange (S&D). – Herr Vorsitzender, Herr De Gucht! Ich glaube, wir sind uns einig, dass Handelspolitik den gemeinsamen Besitzstand der EU nicht in Frage stellen kann, also weder unser Sozialmodell, noch den Grad der Freiheit. Wir haben z. B. im Telekom-Paket vor einigen Monaten den Schutz der Internetnutzer beschlossen, um Internetnutzer vor Ausschluss und Restriktionen zu bewahren. Das war eine heftige Auseinandersetzung. Ich höre nun, dass im Rahmen der ACTA-Verhandlungen mit den Vereinigten Staaten genau dieser gemeinschaftliche Besitzstand wieder in Frage gestellt wird. Meine Frage ist also: Können Sie garantieren, dass die ACTA-Verhandlungen nicht den gemeinsamen Besitzstand des Telekom-Pakets in Frage stellen und den Internetzugang schützen? Gibt es angesichts des Lissabon-Vertrags mehr Transparenz in den Verhandlungen?

Karel De Gucht, Commissioner-designate. - With respect to transparency, I think I have already answered in one of the first questions what I am prepared to do, and I will obviously also do that with respect to ACTA. I will abide by the Telecoms Package in relation to ACTA; ACTA should not be designed to be something of a key to close the internet. That will not be our approach. I believe that what we should address in ACTA is the trade in counterfeit goods; and not to target somebody, for example, who brings a T-shirt which is counterfeit home with him ­ that is not what it is about either. What we are addressing here is organised counterfeiting, in most cases by organised criminals. That is what we are addressing in ACTA and the idea is certainly not to limit the freedom of expression through the internet.

[…]

Caroline Lucas (Verts/ALE) – Apologies for the second question from me, it is just that a colleague was unable to be present. I wanted to go back to the question of Bernd Lange on ACTA, the anti-counterfeiting trade agreement, and in particular to focus on the issue of transparency again because Parliament has largely been kept away from these discussions. We have never seen any of the drafts of the ACTA chapters for example, and DG Trade argues that the participants agreed beforehand on confidentiality. However, we understand that that is on the basis of a request put forward by the US because they are working under the premise of the fast-track rules under which the US Administration has to act on this matter. In the EU of course we have very different procedural legal frameworks, and under the Lisbon Treaty Parliament must be consulted and will have to agree on ACTA. As Commissioner for Trade, what will you do to inform Parliament on the same terms as the Council about the ACTA negotiations so that there is a timely opportunity for us to express our views and to take our recommendations into account? At what stage of the negotiations do you plan to transmit the draft texts of the chapters to Parliament and are you willing to challenge the understanding on confidentiality and inform the ACTA participants on the basis of the requirements set by the Lisbon Treaty?

Karel De Gucht, Commissioner-designate. − If there is a confidentiality agreement between the participating parties I will respect it – and I think I have to respect it – but it does not mean that we cannot have a thorough discussion on what ACTA is about, what the guidelines for the European Union should be. You may start from the assumption that in my answers I will fully take into account what is on paper, but if you engage in a negotiation on certain terms you cannot change those terms in the course of the negotiation. I will be obliged to respect them, and I will do so. But I will also make sure that you are duly informed and can express your views, and I will take those views duly into account.

Caroline Lucas (Verts/ALE). – I wonder then whether it was right to have accepted those terms of confidentiality? I appreciate it was not you, but should the Commission have accepted conditions of confidentiality given that, under our own legal framework, it is clear that for Parliament to be able to have a full role in the debate and the discussion about this, we need to have access to full information? So my first question is: should that confidentiality have been agreed to and secondly, how do you propose to involve us, for example, with the FTA on Canada, which is coming up very soon? It has got IP chapters as well. Maybe you have got an opportunity with Canada to try to agree different terms, so that it is not held on a basis of confidentiality?

Karel De Gucht, Commissioner-designate. - You probably know that your new competences with respect to trade are brand new. It is only on the basis of the Lisbon Treaty that you have the right of codecision and that you have the right of consent on treaties. It means, I think, that this confidentiality clause was conceived under the previous regime which was of course completely different. Now we will have to judge whether we can engage in confidentiality agreements or not. I imagine that you will put questions on that as well, but you should also realise that sometimes negotiations are only possible provided that you respect certain confidentiality agreements. That is a balancing exercise that we will have to make together with respect to Canada. We are in the new regime and I will make sure that you are duly involved, bearing in mind that we are nevertheless still talking about a bilateral agreement, which means that this is different from a multilateral agreement.

Some Member of the European Parliament are asking the Commission and the Council when they plan to respect the Lisbon Treaty on ACTA, where the next Trade Commissioner Karel DeGucht said in a hearing that the Lisbon Treaty does not apply to the ACTA negotiations, because the confidentiality rules were negotiated before the entry into force of the Treaty.

Here is the full text of the question, Mr Josefsson is publishing it in a proprietary Microsoft Word format (which is used by EU bureaucrats) on his website, but not in a plain text or html, so here it is:

EUROPEAN PARLIAMENT
FORM FOR TABLING PARLIAMENTARY QUESTIONS
To the: COUNCIL , COMMISSION

ORAL QUESTIONS

Oral Question with debate (Rule 115)

Question Time (Rule 116)

WRITTEN QUESTIONS

Written Question (Rule 117)

Priority Written Question (Rule 117 (4))

AUTHOR(S): Carl SCHLYTER, Eva LICHTENBERGER, Christian ENGSTRÖM, Niccolò RINALDI, Daniel CASPARY, Syed KAMALL, David MARTIN, Helmut SCHOLZ, Bernd LANGE, Robert STURDY

SUBJECT: Anti-Counterfeiting Trade Agreement (ACTA)

TEXT:

The plurilateral negotiations on an Anti-Counterfeiting Trade Agreement (ACTA) are being conducted under a premise of confidentiality agreed upon by participants on a request by the US Government.

At a hearing on 12 January 2010, Commissioner-designate Karel De Gucht said that he will respect the confidentiality agreement among ACTA participants.

In preliminary discussions with Parliament on a new Inter-Institutional Framework Agreement, the Commission agreed on 27 January that it is committed to a reinforced association with Parliament through immediate and full information of the Parliament at every stage of negotiations on international agreements (including the definition of the negotiation directives), in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU of Parliament, while respecting each institution's role and safe compliance with new procedures and rules for the respect of the necessary confidentiality.

- How will the Commission honour its commitment to a reinforced association with Parliament with regard to the ACTA negotiations?

- When will the Commission grant Parliament access to all documents relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters?

- Given that the Spanish EU Presidency aspires to an ACTA agreement within the first half of 2010, and given that many Parliamentarians see ACTA as an early example of EP's new role under the Lisbon TFEU, would Commission think that full access to ACTA documents should be given to Parliament prior to the coming into effect of the new Framework Agreement?

Signature(s): Date: 03.02.2010

EN

Let's see if the European Parliament have to go to the ECJ to get the documents, and test the Lisbon Treaty, but there is a high chance that the Commission and the Council will say that the Lisbon Treaty does not apply here, or they won't give full transcripts of the meetings, neither access to the documents.

"For society, however, the loss of competition through the granting sole rights to an individual or organisation is justified only if it stimulates the economy and delivers goods that change people’s lives for the better. […] Instead of stimulating innovation, such [business method] patents seem more about extracting “rents” from innocent bystanders going about their business. […] If truth be told, few inventions are really worth patenting. Time and again, surveys show that in both America and Europe companies rate superior sales and service, lead time and secrecy as far more important than patents when it comes to profiting from innovation. […] Pursuing patents aggressively for cross-licensing agreements has little to do with encouraging innovation, though. Indeed, by increasing transaction costs, such deals are in effect a tax on innovation. By the same token, how much of a contribution have the 12,000 or so business processes patented annually in America (but few places elsewhere) made to innovation? Precious little, by all accounts. It is hard enough to find evidence (outside the pharmaceutical and biotech industries) showing that the patent system generally spurs innovation. It is harder still to find justification for business-process patents."

Source: http://www.economist.com/sciencetechnology/displayStory.cfm?story_id=15479680

"Kappos said that the project “got a good level of interest. It got positive responses from examiners and the public. [The project's participants] found significant prior art, especially in non-patent literature. That's important in software, where so often it's not patented prior art. Our mission as an agency is to get the best prior art in front of examiners. There clearly is value [in the project]." "

Source: http://www.sdtimes.com/link/34113

I'll admit that, at first, I was against the idea of NPEs — "patent trolls" — profiting from others' innovations. However, after doing some research, I've come to agree that so-called "trolls" are doing nothing worse than many other companies. Notice that it's generally the large corporations that get incensed about the trolls. Most NPEs don't seem to be any worse than day traders, for instance.
http://www.generalpatent.com/media/videos/patent-troll

"The machine or transformation test is the current analysis that the courts and the Patent Office will take when considering whether subject matter is patentable. As both Bilski and Prometheus show, this question is not industry specific, but it is particularly important when an inventor is trying to obtain patent rights directed to processes. Because of the changing landscape, and the likelihood that whatever the Supreme Court does, there will remain unanswered questions about where the boundaries lie, the patent practitioner should always consider trying to claim processes both broadly and as tied to devices and/or causes one or more transformations."

Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202435413110&Patentable_Subject_Matter_After_Bilski

"Microsoft has been granted a patent on a privilege escalation system which appears to cover the functionality of PolicyKit, which is used for fine grain authorisation on Ubuntu, Fedora, openSUSE and other Linux systems."

Source: http://www.h-online.com/security/news/item/New-Microsoft-patent-may-put-Linux-security-components-at-risk-857848.html

"It appears that Microsoft has just patented sudo, a personalized version of it. Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft."

Source: http://www.groklaw.net/article.php?story=20091111094923390

"At Monday’s hearing, neither party had the objective of abolishing software patents. The Bilski case is about a business method patent, so there was Mr. Jakes arguing that business methods should be patentable, and Mr. Stewart arguing that they shouldn’t. For software to be excluded, we’re relying on the judges (to whom we wrote an amicus brief, as did many others). There’re a few worrying statements, but there’s also a lot of hope."

Source: http://news.swpat.org/2009/11/bilski-hearing-software-patents/

"Official transcript of the hearing Bilski vs. Kappos before the US Supreme Court, Nov 9 2009."

Source: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf

"At 2pm ET on November 9, 2009, Chief Justice John Roberts gaveled the session to a close announcing that the case had now been submitted. The arguments were good, and the Court was most assuredly hot, peppering both sides with question after question seeking to probe the issues. It is clear that the Supreme Court did their homework."

Source: http://www.ipwatchdog.com/2009/11/09/bilski-arguments-complete-at-the-us-supreme-court/id=7217/

http://www.ipwatchdog.com/2009/11/09/argument-day-in-bilski-at-us-supreme-court/id=7209/

"The last two decades have seen an extraordinary growth in the number of patent applications for business technologies and methods. Critics of business method patents tend to assign responsibility for this development to judicial activism by the judges of the Federal Circuit especially those responsible for the decision in State Street […] The judicial activism thesis may have a superficial appeal. […] Yet the judicial activism thesis suffers from multiple glaring problems and plainly cannot account for the timing of the rise in business method patenting, which plainly began well before State Street."

Source: http://www.patentlyo.com/patent/2009/11/business-method-patents-technological-change-not-judicial-activism.html

The official Court Transcript from the Hearing:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf

Some reports and analyses that summarize the one hour hearing on Nov 9th

The consensus from these reports seems to be that the Judges showed unease both against patenting abstract ideas as against the potentially wide-ranging effects of the "machine-or-transformation test" proposed by the Appeals Court in its rejection of Bilski's patent application. .

Jill Browning at Patently-O provides this report: Supreme Court Hears Bilski v. Kappos
http://www.patentlyo.com/patent/2009/11/supreme-court-hears-bilski-v-kappos.html

PA Gene Quinn at IPWatchdog (a pro-swpat shop) writes: Argument Day in Bilski at US Supreme Court
http://www.ipwatchdog.com/2009/11/09/argument-day-in-bilski-at-us-supreme-court/id=7209/

Kevin E. Noonan at PatentDocs: Supreme Court Bilski Argument
http://www.patentdocs.org/2009/11/supreme-court-bilski-argument.html

Here's a collection of stories penned before the hearing.

USAToday: Software patent case arrives at Supreme Court
http://www.usatoday.com/money/companies/regulation/2009-11-09-patents09_ST_N.htm

Washington Business Journal: Supreme Court may invalidate software patents
http://washington.bizjournals.com/washington/stories/2009/11/09/story3.html?b=1257742800^2390791

NewsObserver: Patent law must not stifle innovation (Rob Tiller, RedHat)
http://www.newsobserver.com/business/story/178809.html

Reuters: U.S. top court to hear business method patent case (Diane Bartz)
http://www.reuters.com/article/deborahCohen/idUSTRE5A545420091106

Christian Science Monitor: Supreme Court to decide: What kind of innovations get a patent? (Warren Richey)
http://www.csmonitor.com/2009/1108/p02s13-usju.html

Techwire: 'Bilski': Software firms eye key patent case at Supreme Court
http://localtechwire.com/business/local_tech_wire/news/blogpost/6369834/

Huffington Post: An Important Patent Law Precedent Approaches (Eben Moglen, SFLC)
http://www.huffingtonpost.com/eben-moglen/an-important-patent-law-p_b_342962.html

Patently-O: Abandoning software patents? (Ciaran O'Riordan)
http://www.patentlyo.com/patent/2009/11/abandoning-software-patents.html

Courant: High Court Must Lower Bar For Patents (Angelo Chaclas)
http://www.courant.com/news/opinion/editorials/hc-chaclas-pitney-patent.artoct30,0,5438710.story

AMLaw Litigation Daily: Bilski Supreme Court Preview: Finnegan Lawyer Challenging 'Machine or Transformation' Patent Test Says He's Ready (Ben Hallman)
http://www.law.com/jsp/tal/digestTAL.jsp?id=1202435239067

Law.com: A Math Geek's Ride to the High Court in Landmark Patent Fight (Tony Mauro)
http://www.law.com/jsp/article.jsp?id=1202435264768&A_Math_Geeks_Ride_to_the_High_Court_in_Landmark_Patent_Fight

"With the tech industry looking on, the Supreme Court today will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software. A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software."

Source: http://www.usatoday.com/money/companies/regulation/2009-11-09-patents09_ST_N.htm

"In a world of constantly accelerating technological change, economic prosperity depends on innovation. To support such innovation, it is vital that our patent system be well-calibrated, so that overly broad patent monopolies do not choke innovation. In the last several years, patent standards have been relaxed by the courts, which has created a patent system that hinders innovation in the software industry. The Supreme Court now is considering a case, Bilski v. Kappos, that may address this critical problem."

Source: http://www.newsobserver.com/business/story/178809.html

"In upholding a lower court ruling, the federal circuit wrote that a business process (like online banking) must be ‘tied to a machine’ or transform ‘a substance into a different state or thing’ in order to qualify for patent protection. This ‘machine or transformation’ test, as it is called, is too rigid to incite innovation.
If the circuit court ruling is upheld, it could have a negative effect on Connecticut technology companies where the ability to patent innovations in business systems is critical to be competitive and maintain customers."

Source: http://www.courant.com/news/opinion/editorials/hc-chaclas-pitney-patent.artoct30,0,5438710.story

"The SFLC and I recently filed a brief in Bilski v. Kappos, along with plenty of other lawyers, and I gave a talk about the case, and the future of patent law, this morning at Cardozo Law School. The outpouring of amicus briefs in this case, which will be heard by the Court on November 9, must be particularly noticeable to the Justices and their law clerks: a stack of dozens of third-party briefs seeking attention would have been the lunchtime talk of that inner core of the Court back when I worked there, and I'm pretty sure that hasn't changed. A high stack of amicus briefs […] means people outside the Supreme Court think the case is important. Bilski is very important indeed."

Source: http://www.huffingtonpost.com/eben-moglen/an-important-patent-law-p_b_342962.html

"Bernie Bilski and Rand Warsaw were just a couple of "math geeks for hire" from Pittsburgh when they applied for a patent in 1997. They had an idea for making the unpredictable predictable for utility companies: a way to make energy bills consistent, month to month, no matter what Mother Nature had in store, weatherwise. WeatherWise USA Inc. is the name of their company, in fact. What Bilski and Warsaw did not predict is that their patent application would be rejected and, on appeal, would make its way to the U.S. Supreme Court 13 years later."

Source: http://www.law.com/jsp/article.jsp?id=1202435264768&A_Math_Geeks_Ride_to_the_High_Court_in_Landmark_Patent_Fight

"If the Litigation Daily were prepping for our first Supreme Court argumentno snickering, pleasein a case that's considered one of the critical business controversies of the Court's term, we would be a damn sight more nervous than J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner. On Monday, Jakes is arguing Bilski v. Kappos, a closely watched IP case that will help decide whether business methods are patentable. But last Thursday afternoon, when we called him, Jakes was at his desk, sounding decidedly unfazed about his first U.S. Supreme Court argument."

Source: http://www.law.com/jsp/tal/digestTAL.jsp?id=1202435239067