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Posted in America, Cablegate, Europe, Patents at 3:40 am by Dr. Roy Schestowitz
Summary: US perspective on the EU Patent, which is a prelude to a global patent, permitting far-reaching litigation even with software patents
EUROPE is under an assault to assimilate. We previously covered a related cable about the EU Patent, which helps create a bridge towards a Global Patent (more on that later). The effects would be devastating to everyone but monopolists and their patent lawyers.
=> related cable about the EU Patent
The following 2006 Cablegate cable shows us how negotiations of the EU Patent has been going. ¶4 of the first cable says that “Notes from the Chancellery’s working group on IPR, provided by a BDI representative, focused on fighting piracy and cooperating more in the area of patents. On combating piracy, the working group recommends coordinating diplomatic efforts to apply political pressure on countries where piracy originates; improving cooperation among customs agencies; and taking political steps to implement a public consumer awareness campaign on pirated and counterfeit goods. For improving transatlantic cooperation on patents, the IPR working group recommends reaching agreement on the Substantive Patent Law Treaty (SPLT); recognizing common U.S.-EU standards; establishing an international court specializing in patent-law; and recognizing extended patent protection for substances that are subject to licensing procedures. The working group also recommended improving cooperation between the EU and U.S. patent offices through targeted programs like establishing exchanges of patent reports, creating a central database for formal data on patents, creating a worldwide standard patent application format, establishing higher quality standards for patent agencies and increased support for cooperation between U.S. and EU patent agencies. For patent applicants or users, the working group recommends prohibiting patents for business practices and formally prohibiting the practice of “patent trolling.” (Note: These recommendations have yet to be presented to the Chancellor for approval and will become part of a larger paper listing the working groups’ recommendations. End Note).”
Just “prohibiting the practice of patent trolling” is not going to address the main problem, which is monopolisation. Trolls are often just pawns in this battle and they mostly hurt the monopolists. Removing them only gives more incentive for multinationals to support this scheme. And as explained in the latter cable, “The EU has long had a goal of creating a single EU patent system under which, as in the United States, a patent could be applied for and granted through a single office, valid in all 27 member states.”
Their long term goal is a global patent subservient to the US system i.e. the USPTO with all of its software patents (hundreds of thousands of them, depending on criteria). We will show this separately in a cable about Japan. In the mean time, consider this:
VZCZCXRO6490
PP RUEHAG RUEHROV
DE RUEHRL #3518/01 3491551
ZNY CCCCC ZZH
P 151551Z DEC 06
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC PRIORITY 6435
INFO RUCNMEU/EU INTEREST PRIORITY
RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUCNFRG/FRG COLLECTIVE PRIORITY
RUEATRS/DEPT OF TREASURY WASHDC PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY
RUCPDOC/DEPT OF COMMERCE WASHDC PRIORITY
C O N F I D E N T I A L SECTION 01 OF 02 BERLIN 003518
SIPDIS
SIPDIS
STATE FOR EB/TPP, EUR/ERA, AND EUR/AGS
USTR FOR DDWOSKIN, MMOWREY, SDONNELLY
USDOC FOR KPARSONS
E.O. 12958: DECL: 12/14/2016
TAGS: ETRD [Foreign Trade],
EFIN [Financial and Monetary Affairs],
ECIN [Economic Integration and Cooperation],
KIPR [Intellectual Property Rights],
PREL [External Political Relations], GM [Germany]
SUBJECT: GERMANY HONING TRANSATLANTIC ECONOMIC INITIATIVE
REF: A. BERLIN 1747
B. BERLIN 3076
Classified By: DCM John Koenig for reasons 1.4(b) and (d).
¶1. (C) Summary: The Chancellor and other senior German
officials continue to note Germany's economic agenda for its
EU presidency includes promoting a more highly integrated
transatlantic market place, while at the same time
reiterating support for a successfully concluded Doha
Development Agenda (DDA). The exact parameters of the
Chancellor's transatlantic economic initiative have continued
to evolve over the past four months, moving from exploring
the possibility of a transatlantic free trade agreement
(TAFTA) (ref A) to the current formulation, which focuses
mostly on overcoming or alleviating regulatory barriers.
Merkel recently brought together leaders from business and
government to help define this transatlantic initiative. The
reformulation resulted from German officials concluding a
free trade agreement would not achieve much in terms of
tariff reduction on non-agricultural products and would face
the same challenges on agriculture market access the EU and
U.S. are currently confronting in the DDA. The Chancellery
and other ministries have become more careful to stress that
the primary objective remains a successful Doha Round, but
that they also see the transatlantic market place initiative
as something which could subsequently contribute to improved
prosperity on both sides of the Atlantic. German business
and government officials say they plan to reach out to
parliamentarians and Members of Congress to discuss the
initiative. End Summary.
Fleshing Out German Thoughts on Transatlantic Economic
Cooperation
¶2. (SBU) Taking a further step to refine thinking on
increasing trade between the U.S. and EU, representatives
from German government and business met November 22 at the
Chancellery to discuss how to integrate further the
transatlantic market economy. Starting from a premise that
any type of a transatlantic free trade agreement is
unrealistic, Chancellery and business representatives from
the Federation of German Industries (BDI) have sought to find
a more pragmatic way forward. Both government and business
representatives characterize their initiative as
complementary to Doha, rather than an alternative or
competing idea. All continue to stress the importance of a
successful DDA, even though many officials and business
people privately offer serious misgivings over the prospects
for the Round. At the request of Chancellor Merkel, who has
publicly stated her desire for a transatlantic economic
element in Germany's EU presidency, business and government
representatives created working groups in five key areas --
Energy, Finance, IPR, Standards, and Environment -- to flesh
out concrete proposals. Officials noted the first session
was intended to develop a work program for each group, with
the working groups presenting their recommendations on
December 20.
¶3. (SBU) According to Stefanie Conrad of the Chancellery's
Foreign Trade and G-8 Office, Merkel wants the U.S. and EU to
use what she sees as already excellent economic relations to
move forward on more challenging economic issues,
particularly on regulatory convergence and standards
recognition in the five aforementioned areas. The working
groups would develop recommendations in terms of what they
actually see as achievable. Chancellery officials see only
limited success in the previous efforts dealing with
regulatory and standards issues and say Merkel is looking to
give these efforts, and the overall transatlantic economic
relationship, a higher-profile. She wants political leaders
involved in the issues rather than leaving them to experts
for discussion. German officials see engaging Congress as an
important part of the equation. They see the Federation of
German Industry's annual US-German Roundtable, which brings
U.S. Members of Congress to Germany to discuss transatlantic
issues, as an opportunity for such engagement. The
roundtable is scheduled to take place in Hamburg in February
BERLIN 00003518 002 OF 002
A Glimpse Inside A Working Group
¶4. (C) Notes from the Chancellery's working group on IPR,
provided by a BDI representative, focused on fighting piracy
and cooperating more in the area of patents. On combating
piracy, the working group recommends coordinating diplomatic
efforts to apply political pressure on countries where piracy
originates; improving cooperation among customs agencies; and
taking political steps to implement a public consumer
awareness campaign on pirated and counterfeit goods. For
improving transatlantic cooperation on patents, the IPR
working group recommends reaching agreement on the
Substantive Patent Law Treaty (SPLT); recognizing common
U.S.-EU standards; establishing an international court
specializing in patent-law; and recognizing extended patent
protection for substances that are subject to licensing
procedures. The working group also recommended improving
cooperation between the EU and U.S. patent offices through
targeted programs like establishing exchanges of patent
reports, creating a central database for formal data on
patents, creating a worldwide standard patent application
format, establishing higher quality standards for patent
agencies and increased support for cooperation between U.S.
and EU patent agencies. For patent applicants or users, the
working group recommends prohibiting patents for business
practices and formally prohibiting the practice of "patent
trolling." (Note: These recommendations have yet to be
presented to the Chancellor for approval and will become part
of a larger paper listing the working groups'
recommendations. End Note).
¶5. (SBU) The transatlantic economic initiative might also be
a topic for the U.S.-EU Summit in April, according to
Chancellery officials. They note that Merkel is personally
involved in the decision making on this subject and thus
wants her stamp of approval on every aspect of this
initiative. As currently envisioned, points for discussion
would be on how to structure a more formal arrangement for
dealing with regulatory and standards issues, providing the
initiative with a strong political grounding, and agreeing to
clear goals that advance U.S. and German common interests
related to this initiative.
Comment
¶6. (C) Germany's current efforts to produce a workable
transatlantic market place initiative reflect a new approach
to old themes. The Chancellery's deliberate and evolving
approach shows as well the importance Merkel has attached to
producing a tangible objective for Germany's EU presidency
and a possible deliverable for the U.S.-EU Summit. Trade
affected by regulations and standards is a growing share of
the $3 trillion annual transatlantic ($160 billion
U.S.-Germany) economic relationship; progress in this area
could bring strong benefits to companies on both sides of the
Atlantic. The government's focus on standards and
regulations is a sign that German business and government
realize the transatlantic market place initiative cannot
replace a successful outcome to Doha, which remains a Germany
priority. By engaging a variety of upper and mid-level
business and government officials, German officials hope to
produce an honest assessment with broad commitment as to what
is achievable in terms of regulatory convergence and
standards recognition. Germany could use this assessment to
persuade skeptics in Brussels and other EU member states that
Germany's, and EU's, interests lie in accelerating the
important process of regulatory convergence and standard
recognition.
TIMKEN JR
Several years later, US politicians were jubilant, saying that the “EU Makes Progress Towards, An EU-wide Patent System” (from Monday, the 14th of December, 2009). “The ministers also reached a deal on the establishment of an EU patent court system,” says the cable, “that would set up a single European appeals courts for patent infringement disputes. The agreement paves the way for further discussion, under Spanish and later Presidencies, towards a future patent system, but, given institutional and procedural hurdles, such a system is likely still one or more years away.” Here is the full cable:
VZCZCXRO5488
RR RUEHIK
DE RUEHBS #1673/01 3481522
ZNR UUUUU ZZH
R 141522Z DEC 09
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHSS/OECD POSTS COLLECTIVE
UNCLAS SECTION 01 OF 02 BRUSSELS 001673
SENSITIVE
SIPDIS
STATE FOR EUR/ERA KESSLER
STATE FOR NSC KVIEN, DBELL
STATE FOR EEB/TPP/IPE URBAN
USDOC FOR ITA/MAC/EUR/OEU/DEFALCO
USDOC FOR ITA/MAS/OCG/JFERMAN
USDOC FOR ITA/MAS/OTEC/RBLANKENBAKER
STATE PASS TO USTR
E.O. 12958: N/A
TAGS: KIPR [Intellectual Property Rights],
EIND [Industry and Manufacturing],
ETRD [Foreign Trade], SENV [Environmental Affairs],
ECON [Economic Conditions], TPHY [Physical Sciences],
TSPL [Science and Technology Policy], EUR, EUN [European Union]
SUBJECT: EU MAKES PROGRESS TOWARDS, AN EU-WIDE PATENT SYSTEM
BRUSSELS 00001673 001.2 OF 002
¶1. SUMMARY: At a Competitiveness Council meeting in Brussels
December 4, EU industry ministers reached a political
agreement on a process to move toward setting up a single EU
patent to replace the multitude of national patents in force
across 27 member states. The ministers also reached a deal
on the establishment of an EU patent court system that would
set up a single European appeals courts for patent
infringement disputes. The agreement paves the way for
further discussion, under Spanish and later Presidencies,
towards a future patent system, but, given institutional and
procedural hurdles, such a system is likely still one or more
years away. END
SUMMARY
BACKGROUND
¶2. The EU has long had a goal of creating a single EU patent
system under which, as in the United States, a patent could
be applied for and granted through a single office, valid in
all 27 member states. Such a system would, according to
Commission proponents, save firms at least 150 million
Euros/year.
¶3. The EU has tried and failed to launch a common patent a
number of times. The first effort was the Community Patent
Convention (CPC) signed in Luxembourg, December, 1975, by the
nine EU states at the time, but never ratified. An Agreement
Related to Community Patents was signed by the EU 12, in
Luxembourg in December, 1989, but also was never ratified by
all signatories and thus never entered into force. A
political agreement on an approach to an EU patent was
achieved in 2003, but foundered in 2004 when the
Competitiveness Council failed to agree on details of the
regulation.
¶4. Unable to reach agreement on a common patent, European
member states agreed to the European Patent Convention, which
created the European Patent Office (EPO). This differs from
a community-wide patent in that the EPC is a mutual
recognition of nationally agreed patents and includes non-EU
European states as signatories. The arrangement does not,
however, represent a centrally enforceable, European
Union-wide patent.
LATEST EFFORTS MAY BE MORE SUCCESSFUL . . .
¶5. At a December 4 Competitiveness Council meeting, the
Swedish presidency was able to use new powers under the
Lisbon Treaty to gain get member states to agree to the basic
parameters of an approach to an EU common patent and
supporting institutions. The Commission will use this result
to draw up specific legislative proposals. Political
agreement on the key elements of the proposal should
facilitate adoption by the Council and European Parliament.
¶6. Article 118 of the Treaty on the Functioning of the
European Union (TFEU), which consolidates the Treaty of the
European Union with the Treaty of Lisbon, provides for the
creation of European intellectual property rights (IPR) and
the setting up of centralized, EU-wide arrangements for the
authorization, coordination, and supervision of IPR in the
EU. It also calls for establishment of language arrangements
for translations of European IPR, long an issue in the
creation of an EU patent. The entry into force of Lisbon on
December 1, then, provided additional clear legal support for
the patent.
¶7. The new political agreement on an Enhanced Patent System
in Europe calls for the creation of a European and EU Patents
Court (EEUPC), an EU patent (along with a separate regulation
governing translation arrangements for the EU patent), an
enhanced partnership with the EPO, and, as necessary,
amendments to the EPC. Under the agreement, the EEUPC would
be made up of a Court of First Instance, a Court of Appeals,
and a Registry. The EEUPC would be financed by court fees
and contributions from the EU member states at least during
the transition period (five years after entry into force).
The court would be composed of judges with patent litigation
experience at the national level. In addition, non-EU
BRUSSELS 00001673 002.2 OF 002
contracting members of the EPC could accede to the agreement
as well.
. . . BUT NOT A LOCK
¶8. But hurdles remain. The European Union Court of Justice
(EUCJ) is currently considering whether a new European patent
court can be set up (presumably out of concern that such a
system could be contrary to the EUCJ's role as guardians of
the EU Treaties). Member states are not united in their
support for an EU-wide patent, with national patent offices
set to lose patent renewal fees and some competence under the
proposal. And, while the Lisbon Treaty offers legal support
for both a centralized approach to IPR and patent systems and
translation arrangements, the mechanics of both are unclear.
CONCLUSION
¶9. While the notion of an EU-wide patent has been around for
some time, this agreement should come as welcome news for
supporters of a strong internal market and a more robust EU
patent regime. With entry into force of a final regulation
two or three presidencies away, there is time yet for a
roadblock or two, with the EUCJ opinion the largest potential
deal maker or breaker. But political will for an agreement,
combined with the legal support of Lisbon, make an EU-wide
patent regime more likely than not in the near future.
MURRAY
.
As pointed out above (and as we covered in this site before), “The European Union Court of Justice (EUCJ) is currently considering whether a new European patent court can be set up (presumably out of concern that such a system could be contrary to the EUCJ’s role as guardians of the EU Treaties). Member states are not united in their support for an EU-wide patent, with national patent offices set to lose patent renewal fees and some competence under the proposal. And, while the Lisbon Treaty offers legal support for both a centralized approach to IPR and patent systems and translation arrangements, the mechanics of both are unclear. [...] the EUCJ opinion the largest potential deal maker or breaker. But political will for an agreement, combined with the legal support of Lisbon, make an EU-wide patent regime more likely than not in the near future.”
We really need to stop this in order to keep software patents away and hopefully squash them all together, in one fell swoop. █
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