[Patents] Bokenstein's Newsepeak

[PILCH Hartmut phm@a2e.de]

The Bolkenstein Speach Jean-Paul quoted a few days ago can be read at

http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=3Dgt&doc=
=3DSPEECH/00/194|0|RAPID&lg=3DEN

Here are the main relevant parts with some comments.
   =20
  Frits Bolkestein European Commissioner in charge of the Internal Market a=
nd
  Taxation The Protection of Industrial Property in Europe and its place in=
 the
  world Opening Conference of the Trade Mark Office Alicante, 29 May 2000
     _________________________________________________________________
  =20
   DN: SPEECH/00/194     Date: 2000-05-29
  =20
   TXT: EN
  =20
   PDF: EN
  =20
   Word Processed: EN
  =20
   SPEECH/00/194
  =20
   Frits Bolkestein
  =20
   European Commissioner in charge of the Internal Market and Taxation
  =20
   The Protection of Industrial Property in Europe and its place in the
   world
  =20
   Opening Conference of the Trade Mark Office
  =20
   Alicante, 29 May 2000
  =20
   As Commissioner for the Internal Market I take a keen interest in
   adapting the single market to the new economy.=20

He is apparently talking about the "Software Industry".

The "New Economy" is an idea of the early nineties whose icon is Bill
Gates.   According to the Greenpaper's Followup document


  http://europa.eu.int/comm/internal_market/en/intprop/indprop/8682en.pdf

the mere fact that Microsoft owns 400 swpatents proves the necessity of
introducing this kind of thing in Europe.

This is, I am afraid, the background needed to appreciate Bolkenstein's
understanding of "New Economy".  At least the speech gives no hint as to
how much deeper it could be.=20

   The key to success is the creation of an open and competitive Europe, wh=
ich=20
   delivers choice for the consumer and new markets for business.=20

This kind of belief statement is as hard to falsify as Mao Zedong's "The
future is bright but the road there is hard".

   To achieve this we need
   to create an environment which nurtures dynamism and creativity, built
   upon the foundations of a secure legal environment. We need to
   encourage as much innovation as possible and thereby make it
   attractive for industyr to invest in Europe.=20

Microsoft had "a right to innovate".  Do we really need "as much
innovation as possible", no matter of what type?  Is innovation really so
scarce that we need politicians pushing it?

The following sounds even more like "Old Economy":

   In this context, it is
   particularly important to put more emphasises on the protection of
   intellectual property rights.=20

The MIT study

=09http://www.researchoninnovation.org/patent.pdf

has proven the contrary.

But this is irrelevant for those lawyers in Alicante, in front of whom and
for whom Bolkenstein is delivering his policy speech.

   It must become possible to obtain
   Community-wide protection of intellectual property rights through a
   simple application system, with legal certainty and at a reasonable
   price.=20

"It must ... it must ..." is also typical Maoist phraseology.=20

   Some progress in the field of intellectual property right has
   already been made but a lot remains to be done at the European level.
   Important legislative improvements in this field are therefore planned
   for 2000.

To translate this Newspeak into plaintext:  "Today already the patent
system has expanded significantly, but this expansion does not yet have a
legal basis.  We will provide this legal basis this year."

If you want to learn how to translate Newspeak into plain language, read
Solzhenitsyn's novels.
  =20
=2E.. [ deletia, on trademarks ]

   In order to provide industry with a third tool of industrial property
   protection at a Community level, the Commission intends this year to
   present a proposal for a unitary Community patent system.

Interessant ist, dass immer nur den Rechteinhabern Werkzeuge in die Hand
gegeben werden m=FCssen.  Die von diesen Rechten betroffenen sind egal.
  =20
   This idea has been particularly welcomed by the Lisbon summit, which
   stated that innovations should be adequately rewarded within the new
   knowledge-based economy, in particular through patent protection,
   whereby an explicit reference was made to the future Community Patent.

What did the Lisbon summit say exactly?

It is common practise of patent expansionists to put their own words into
other people's mouthes.  We already have many examples of this.

Also, is "knowledge-based economy" anything more than another Newspeak
phrase?

According to Orwell and Solzhenitsyn, Newspeak usually has the following
properties:

  (1) Pretense of Scientificity
=09"scientific socialism"
=09"New Economy"
=09"knowledge-based "economy"
  (2) encoding of special meanings into broad words
=09"reeducation" for "physical anihilation of opponents"
=09"rewarding of innovation" for "patent inflation"
  =20
   The Community Patent will have the same unitary features as the
   Community Trademark and the Community Design. The Community Patent
   must be affordable.=20

Affordable for patent owners.  Who cares about whether all of us can
afford to walk on minefields every day?

   It is also crucial that the Community Patent
   system should guarantee legal certainty.=20

Legal certainty on a minefield?

Oh no.  Certainty only for the patent owner, of course.

   In this context the
   Commission has in its contribution to the Intergovernmental Conference
   on institutional reforms proposed the creation of a single,
   centralised Community jurisdiction to deal with certain aspects of
   patent litigation, such as infringement and validity, in first
   instance and at the level of appeal.
  =20
   Having today so often referred to the Alicante Office, I must in this
   context point out that due to its long and high-level experience with
   the European Patent, it is desirable that the European Patent Office
   should become the technical operator for the future Community Patents.
  =20
   The Commission is not only active in the field of industrial property
   but also proposes new legal instruments in the field of copyright.
  =20
=2E..

   I should in particular like to mention the Commission proposal for a
   Directive on the artist's resale right (droit de suite). [Resale right
   is the right whereby the author, or after his death, his heirs or
   other beneficiaries, receives a percentage of the resale price of a
   work in the field of visual arts each time it is resold.] The
   discussion in Council has been controversial.
  =20
   Nevertheless, political agreement on a Common Position was reached on
   15 March albeit with the Commission reserving its position because of
   an exceptionally long transition period of 15 years, which was granted
   to some countries notably the UK. The second reading still has to take
   place in Parliament and depending on it, final adoption might be
   achieved by the end of this year.

   On the basis of work carried out in the framework of WIPO the
   Commission presented also a proposal for a Directive on Copyright and
   Related Rights in the Information Society. Negotiations in the Council
   have almost been concluded and final adoption should be possible by
   the end of this year.

Even in the copyright area there is a lack of serious discussion.  We
cannot yet recognize the outlines of the "knowledge-based economy", and
the DG 15 already believes it can fix the laws for all of Europe.  Not
only that, for the whole world:
  =20
   The interests of EU industry are of course not only linked to internal
   EU matters but also strongly connected also internationally. The
   internationalisation and globalisation of trade has led the Commission
   to be highly active in the external intellectual property sphere.
  =20
   The Commission, on behalf of the Community, is playing a leading role
   within the World Trade Organisation. The Commission is also very much
   engaged in the work within the World Intellectual Property
   Organisation, the traditional forum for negotiating international
   treaties dealing with intellectual property.
  =20
   This prolific activity is due to the need, clearly felt nowadays, to
   provide European firms doing business in non-Community countries with
   an adequate legal framework within which to enjoy effective, genuine
   protection of know-how and innovations. The improvement of protection
   in third countries also makes it possible to combat imports of
   counterfeit goods into the Community more effectively. In fact, the
   Commission's general objectives at international level are to
   stimulate international trade and to create a fruitful climate for
   cross- border investment.
  =20
   For the sake of completeness, I should like to point out that in the
   context of the aforementioned Intergovernmental Conference, the
   Commission is also proposing a change of the procedural rules of Art
   133 of the EU Treaty (ex Art. 113) in order to strengthen the
   possibilities to take action against Member States of the WTO, which
   do not respect the provisions of the Agreement. Such a change is
   necessary in order to strengthen further the role of the Community at
   an international level.
  =20
   A good example of the Commission's engagement on behalf of the
   Community in international work is its participation in the
   negotiation of the WIPO Treaties on the international registration of
   Trademarks and Designs (Madrid Protocol and the Hague Agreement) and
   the two new Treaties which were adopted on the protection of authors
   ("WCT") and on the protection of performers and phonogram producers
   ("WPPT").
  =20
   These two copyright Treaties significantly update the international
   protection for intellectual property and improve the means to fight
   piracy world-wide. At the same time they provide for the appropriate
   international response to the challenges facing intellectual property
   in the digital age.
  =20
   The Commission's proposal for the Directive on Copyright and Related
   Rights in the Information Society implements the main obligations in
   substance of these Treaties at European Community level.
  =20
   In parallel with this implementation in substance the Commission
   proposes a Council decision on the ratification of the WIPO Copyright
   Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) on
   behalf of the Community.
  =20
   The need for protection of industrial property rights for innovation
   and employment and its impact on competition is crucial.   My short
   presentation of what the Commission has already achieved and of the
   on-going activities clearly shows the importance the Commission
   attaches to the protection of Intellectual Property Rights within the
   EU and at a global level. I am convinced that the importance of
   intellectual property rights will continue to grow in the coming
   years, thereby continuing the trend which was set at the end of the
   "nineties". With the expertise and commitment available in the key
   organisations in this field - WTO, WIPO, OHIM and EPO - I am convinced
   that together we shall be able to meet the challenges ahead.

[ Transation to plain language: ]

Dear patent lawyer audience!
I promise you that I will strive to continue to broaden the influence of
your apparatus.  The tremendous growth of your business during the 90s
shall be continued throughout the next decade, if you give me your
support.  Innovation, Intellectual Property, New Economy,
Extreme Importance, Abrakadabra, ...

In a recent talk organised by orf.at (Austrian Television),=20

=09http://futurezone.orf.at/futurezone.orf?read=3D3Ddetail&id=3D3D30188=20

Harvard's Prof. Lessig talked about "Software Stalinism".  I didn't see
any mention of Orwell's Newspeak and Mao's dogmatic style, but I'm sure he
must have something similar in mind. =20

However Mao and Stalin have written many speaches that are more
interesting and profound than this one of Bolkestein.  But under them the
Bolkestein type of rhetoric flourished. And the goal was the same: to
serve the expansionist interests of a regulatory apparatus that had long
lost sight of its purpose.

-phm