Slashdot Mirror
EU Patent Examiners Warn Parliament Will Have "No Power"
zoobab writes "The Staff Union of the European Patent Organisation sent a letter to the President of the European Parliament, warning that after the EU accedes to the European Patent Convention, there is a risk that the European Parliament would be 'circumvented' as a legislator. The European Patent Organisation is in no way a model of democracy: national patent offices are in power, there is no parliament involved in the decision-making process, and diplomatic conferences are held behind closed doors. There are plans to create a central patent court in Europe, which would operate in a democratic vacuum, not counterbalanced by any legislative assembly, in particular not the European Parliament. Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent). And Microsoft, IBM, and SAP are lobbying in Brussels not to reopen consideration of the software patent directive."
The United Patent Litigation System replaces the EPLA. The official justifications are that it will decrease bureaucracy and costs. As a side effect (which is the real motivation of some pushers), it will push aside the European Parliament (which threw out swpats in 2005), and give more power to the European Patent Office (which approves almost as much as the USPTO does). More details:
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The pursuit of software patents is teh pursuit of fraud and public deception.
abstraction physics application (including software)is a human right and duty.
Beware of software patent pursuers bearing gifts.
It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.
There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling". The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".
Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents.
There's no question that the current setup, in which the European Patent Office only performs a unified examination of a patent application but doesn't really grant a single European patent, is suboptimal from the perspective of those taking out patents. It's also an inefficiency that patent litigation can currently only take place on a country-by-country basis (including invalidation, unless oppositions happens early enough so that the EPO itself could reject the patent application).
However, if an international construct such as the European patent system is made more efficient and powerful, then that increase in power and efficiency should be accompanied by an at least proportional increase in power of democratically elected lawmakers governing the same field of policy-making. That should be a governing principle regardless of whether hardware, software or other patents are at stake. The patent examiners' union raises that point and basically says that the exact opposite is happening from their point of view: more power and less control.
I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.
The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.
The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.
The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.
I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).
Or you know, you can just file an application at the ALREADY EXISTING European Patent Office.
http://www.epo.org/patents/Grant-procedure/Filing-an-application/European-applications.html
This isn't about application/grants ... this is about enforcement (and consequently patentability).
And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.
While that is true, please consider the following scenario:
1. Create office with power, without responsibility, and without anyone in the bureaucratic machine who can question their decisions
2. Install own people (did I mention it's not an elected body?)
3. WELCOME BACK SOFTWARE PATENTS
At least the national patent offices have clearly defined authorities they report to. Do we really need more red tape to sync databases?
No, the main goal have always been further integration and democracy within the Union, however, certain groups who often complain that the EU is undemocratic refuse to let it become more democratic, i.e. Eurosceptics such as the British Conservative party or the UKIP, because apparently a democratic Union would undermine national sovereignty.
"Civis Europaeus sum!"
Patents will always be a double edged sword. A guy with a great idea can easily have it stolen by a large company in the same field with the ability to create and market the product much faster. Knock off companies become king. Think of an entire world full of unscrupulous chinese manufacturers forever cloning other people's products.
OTOH big companies with deep pockets can play the patent troll game far easier than in individual entrepreneur/inventor.
Ideally a patent provides a limited time period for inventors to profit from their idea, encouraging innovation while including a mechanism whereby these innovations can eventually pass into the public domain for the benefit of the general public.
The entire purpose of the EU was to reduce the crippling bureaucratic balkanization and get all the countries working from the same playbook. How can you expect a small country with, for example, no electronics manufacturing to have patent office expertise for that industry?
The big problem with the current issue isn't patents but the lack of checks and balances. The core idea of democracy is that every part of government has "civilian oversight".
I have mod points. The reign of terror begins now.