[Patents] Eurolinux position on Community Patent

[phm@a2e.de (PILCH Hartmut)]

Non-Profit Associations and Software Companies connected in the Eurolinux
Alliance have published a joint position paper on the Community Patent
that asks for an unbureaucratic system, based on the "polluter pays
principle", with no role for the EPO.

There is a guestbook where you can add your signature and comment.

Please go to

=09http://www.eurolinux.org/news/cpat01B/

and see for yourself!

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                 Eurolinux Position on the Community Patent

      European patent politicians tend to portray the Community Patent
         project as a key to progress and prosperity in Europe. The
     innovativity of our economy, according to this view, seems to be a
    largely function of cheap availability and uniform enforcability of
       patents throughout the European Interior Market. The Eurolinux
   Alliance believes that the Community Patent according to current plans
    would stifle innovation and harm European citizens. Instead it must
    not be built as an extension to the current system maintained by the
    European Patent Office, but as a new lean, decentral, unbureaucratic
   foundation in the spirit of the Polluter Pays Principle. The Eurolinux
        position statement comes with an online signature guestbook.


     * Appeal for a Lean and Balanced Community Patent
     * Signatories
     * Related Reading
     * About EuroLinux - www.eurolinux.org
     * Press Contacts
     * Permanent URL for this PR
     * Legalese

Appeal for a Lean and Balanced Community Patent

   In its current form, the Community Patent directive proposed by the
   General Directorate for the Internal Market (EC commissioner Frits
   Bolkestein) poses a serious threat to innovation in Europe.

   European patent politicians tend to portray the Community Patent
   project as an issue of vital importance to progress and prosperity in
   Europe. According to them, innovation and prosperity in Europe depend
   on the availability of a cheap patent that can be uniformly enforced
   throughout the different jurisdictions of Europe. We believe that this
   view is too much focussed on the patent owner's perspective. While the
   benefits of cheapness and uniformity are evident, they may be
   difficult to realise without adding extra burdens to citizens, on top
   of those burdens which are already generated by the patent system
   itself. Rather than just go on and on optimising the existing patent
   system for the benefit of patent owners, we should take a break and
   ask: how should a Community Patent be constructed, if it is to
   generate maximal public benefit at minimal public cost?

     * The EPO cannot be trusted to handle the Community Patent
     * Polluter Pays Principle instead of Examination Bureaucracy
     * Independence of Jurisdiction and Legislation
     * Solution to the multilinguality dilemma

The EPO cannot be trusted to handle the Community Patent

   Before patents generate any benefit, they first impose a burden on
   society by restricting freedom. Freedom is a primordial value of
   democracy and market economy, which may not be restricted without
   clear evidence that such a restriction benefits the public. However,
   old and new economic studies show that in many areas, especially those
   related to software, logical problem solutions and sequential
   innovation, patents run counter to their purpose: they tend to stifle
   innovation and even diminish overall IP assets (by creating insecurity
   about copyright-based property). There are no serious studies which
   attempt to show that software patents are macro-economically
   beneficial. Research in the economics of gene patenting has pointed
   out similar problems. Art 52 and 53 of the European Patent Convention
   reflect this common sense by limiting patentability to the field of
   technical inventions, i.e. teachings about the use of controllable
   forces of nature, and explicitely excluding all kinds of rules of
   organisation and calculation as well as discoveries and other items,
   whose patentability tends to do more harm than good.

   The European Patent Office (EPO), which was entrusted with observing
   and maintaining the letter and spirit of the EPC, has however
   deliberately violated the law, scorned the constitutional order of the
   EPC member states and worked against obvious public interest for the
   sole benefit of the EPO itself and the patent community, thus
   generating legal insecurity and giving rise to public criticism and
   distrust in the European patent system.

   It is clear that something has gone utterly wrong with the
   construction of the EPO. A lack of institutional balances has led to
   self-centeredness, unaccountability and even habitual moral
   insensitivity. The Community Patent can hardly be successful, if it is
   built on an unhealthy organisational foundation. Rather than granting
   new powers to an organisation which has already systematically abused
   its old ones, a new lean organisational framework with proper checks
   and balances should be designed.

   In the following we suggest some possible elements of such a design.
   While perhaps not all of these will be politically acceptable at the
   moment, they illustrate a general direction. The point is that,
   however the system is designed in the end, it should be lean,
   decentralised and democratically controllable.

   At the same time, we demand that the EPO be put under scrutiny, that
   those responsible for the malpractises of the EPO be disciplined and
   some chief culprits be removed from their posts. However this campaign
   should not stand in the way of the Community Patent project. The CP
   project should be carried out on its own foundation, free from burdens
   of the past.

Polluter Pays Principle instead of Examination Bureaucracy

   It is time to draw consequences from the apparent failure of the
   examination system. After decades of futile attempts of improvement,
   things are only getting worse: we have ever-long periods of waiting
   for examinations leading to trivial and often even invalid patents.

   Rather than letting a heavy-weighted office accumulate a long backlog
   of patent applications only to cheat the public with an invalid
   validity stamp, patent descriptions should just be published directly
   according to some formal requirements, as is already practised in
   France and Australia now.

   In order to protect the public from unjustified patent claims, the
   work of invalidating such claims could be rewarded by an incentive,
   payable by the owner of the invalidated patent through some procedure.
   Like in other ecosystems, the polluter should pay, and there should be
   no big organisation that profits from pollution.

   On the other hand, if serious patent owners need really strong
   validity proofs for infringement procedings, they can raise the
   invalidation reward sum. This will create a market for patent validity
   insurance companies, which may in turn choose to perform some kind of
   patent examination. Many further variations, refinements and
   compromises on this "polluter pays principle" are possible.

   If the Community Patent is to be administered through any bureaucracy
   at all, such bureaucracy should be operated through the national or
   even regional level rather than through a central authority.

Independence of Jurisdiction and Legislation

   As with national patents, Community Patent jurisdiction should not be
   handled by patent offices but by independent courts.

   Given that the European Community is currently not a full-fledged
   democratic state with a reliable balance of powers, restraint should
   be exercised with regard to creating a central European Patent Court.
   Even in a democratic nation state like the USA, the creation of a
   central high patent court (CAFC) in the early 80s marked a turning
   point from a balanced patent system to an uncontrolled vicious circle
   of patent inflation.

   Especially as far the limits of patentability (invention concept) and
   other questions with constitutional implications are concerned,
   balance rather than centralisation of judicial power is needed.
   Regional diversity can function as a corrective. Establishing a
   separate system of administrative jurisdiction over patent offices, in
   which public freedom interests are given a voice, could also help. Any
   divergences of doctrine that develop can be addressed by legislation
   from time to time.

Solution to the multilinguality dilemma

   While the burden of having to provide translation for 22 languages may
   be formidable, requiring all Europeans to be fluent in English or any
   specific set of official languages just transfers the same burden from
   patentees to citizens and runs counter to the EU's professed
   committment to cultural diversity.

   However there seem to be some alternatives which have so far not
   really been considered.

   Machine translations could be accepted, if they reach a certain level
   of reliability. By using intermediate languages such as UNL or Lojban
   (Logical Language), a patent applicant can create an unambiguous
   semantic representation that can be reliably machine-translated into
   any number of languages. Such a semantic representation could moreover
   prove helpful in disambiguating claims and descriptons during patent
   litigation.

   Another approach would be to stipulate that a Community Patent is
   potentially valid in all countries but can be enforced in each country
   only after a translation in that country's language has been
   published. Also, the claims are more important than the description.

   These approaches can also be combined in many ways, e.g.:
   machine-translated claims accompanied by a high-quality semantic
   representation in an intermediate language must be made available at
   once, perfectioned versions in certain national languages later or
   only before legal action in the concerned country.

   The EU could use the opportunity to advance language computing in
   Europe and to establish a model for other fields.

   Finally, when thinking about the problem of language costs, people
   should bear in mind that this problem does not exist with copyright.
   It is the concept of explicit claims which creates the burden in the
   first place, and it doesn't help much to blame Europe's linguistic
   diversity for the fact that patents generate considerable transaction
   costs. While translation costs are still overseeable, hardly any
   insurance company is willing to cover the cost risks associated with
   patent litigation. The bigger the market, the greater this risk
   becomes. Thus in Europe the multilinguality dilemma is only one minor
   cost factor that adds up to the many reasons for adopting a
   restrictive approach to the question of patentability: use patents
   only for true technical inventions (new teachings of using physical
   causality), and leave everything else, especially the fruits of purely
   mental creation in whatever embodiment (book, computer program,
   electronic device, theater performance), to copyright and similar
   non-registration regimes.

Signatories

   Fr=E9d=E9ric Couchet (APRIL.org)
   St=E9fane Fermigier and Bernard Lang (AFUL.org)
   Erik Josefsson (SSLUG.dk)
   Pascal Ricard and Sylvain Perchaud (Europe Shareware)
   Hartmut Pilch and Thomas Winischhofer (FFII.org)
   Luuk Van Dijk (VOSN.NL)

   There is also a signatory guestbook, which allows visitors to sign
   online.

About EuroLinux - www.eurolinux.org

   The EuroLinux Alliance for a Free Information Infrastructure is an
   open coalition of commercial companies and non-profit associations
   united to promote and protect a vigourous European Software Culture
   based on Open Standards, Open Competition and Open Source Software
   such as Linux. Corporate members or sponsors of EuroLinux develop or
   sell software under free, semi-free and non-free licenses for
   operating systems such as GNU/Linux, MacOS or Windows.

   The EuroLinux Alliance has co-organised in 1999, together with the
   French Embassy in Japan, the first Europe-Japan conference on Linux
   and Free Software. The EuroLinux Alliance is at the initiative of the
   www.freepatents.org web site to promote and protect innovation and
   competition in the European IT industry.

Press Contacts

   France and Europe:
          Jean-Paul Smets-Solanes, +33-662 05 76 14

   Germany and Europe:
          Hartmut Pilch, +49-89-18979927

   Denmark and Northern Europe:
          Anne Ostergaard <denmark@eurolinux.org>

   Belgium:
          belgium@eurolinux.org

Permanent URL for this PR

   http://www.eurolinux.org/news/cpat01B

Legalese

   Linux is a registered trademark of Linus Torvalds.
   Windows is a registered trademark of Microsoft Inc.
   MacOS is a registered trademark of Apple Inc.
   All other trademarks and copyrights are owned by their respective
   companies.

Related Reading

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