1 History
2 Problems
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The patent system is today working as a brake rather than a stimulus
on innovation in many fields
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The copyright system has shown its value for promoting software development,
in spite of a widespread belief that copyright is made for the aesthetic
and not for the functional arts.
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The concept of patent is narrowly defined and not pliable.
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A patent is a codified right to exclude others from implementing an
idea which you were first to find or register
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The period is set to 20 years and the rules are basically the same
for “all fields of technology”, i.e. an inflexible obligatory
“one-size-fits-all” system.
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Unlike copyright, patents cover the independent work of other people.
The claims of patents are broad, limited only by the requirement of
novelty plus a few other (mostly dysfunctional) constraints.
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Obtaining a patent involves high costs for the applicant: (1) publication
of business secrets (2) search of prior art, claim drafting, application
procedures, litigation.
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Other players have to monitor thousands of patents. It is costly if
not impossible to avoid infringing on existing patents. Patent litigation,
once it occurs, tends to put smaller companies out of business.
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The costs of legal insecurity and licensing fees have been rising continuously,
so that even the large companies are complaining.
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The problems of the patent system are aggravated by an explosion in
the number of patents. Globalisation brings in more and more players,
e.g. from countries such as China and India.
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With the progress of science and technology, much of the costly empirical
research work has been successfully accomplished already. Much of
today’s innovation takes place in areas such as programming,
based on well-known models of nature, where, even though the effort
behind each individual innovation is very low, the blocking effect
of the concerned patents tends to be high. Typically such innovations
can be described as “business methods based on beginner’s
knowledge of natural science”. Previously it would have been
possible to sort them out because they are not “technical inventions”
(i.e. to not enrich the state of knowledge in natural science), but
the patent world is reluctant to use this concept today, fearing that
it would lead to a dramatic reduction in the number of granted patents.
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The patent system has never proven its usefulness as an instrument
of economic policy. The doubts of economists about the patent system
have never been refuted but only swept aside.
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The patent system was introduced in Germany in 1877 “by lawyers
and protectionists, against the will of the economists” (non-literal
quote, to be verified), as Fritz
Machlup, the leading economist and historian of the patent system wrote
in a report for the US Congress in 1958.
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Government-ordered reports by economists in Australia and Canada in
the 1970s and 80s warned that the patent system would not promote innovation
and should be rolled back or at least not extended to new fields such
as genetics or software. Yet, only a few years later, the patent offices
of the same countries announced extensions of patentability toward
genetics and software.
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The patent system tends to become an unreformable state in the state.
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Patent officials, patent judges and patent lawyers from the large corporations
tend to form a closely-knit, powerful and rich community of gurus who
are used to setting policies among themselves and who do not tolerate
interference from outside.
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the European Patent Office is a state-like entity which unifies the
legislative, executive and judiciary powers in one
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the EPO and other patent offices have enormously grown in staff. They
are obliged to feed many thousand examiners and they live on the fees
for the patents which they grant.
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Even very conservative reform proposals, such as the demand that the
letter and spirit of Art
52 EPC should be respected, have met extremely fierce resistance
from the patent establishment. The European Parliament’s majority
proposed clarifications to the patentability rules in september
2003 and july
2005 which were brushed aside without discussion by the ministerial
patent officials. In order to impose their own positions on the EU,
these officials acted against explicit decisions of their national
parliaments and even broke
the procedural rules of the EU Council. They used rhetoric which
was misleading in many ways.
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Contrary to widespread popular belief, the patents granted by the European
Patent Office and most national patent offices in Europe are not significantly
better in quality than the American or Japanese counterparts. In the
long run, Europe is even worse off than the other two big patenting
powers, because its patent system acts at an international level where
democratic controls are weaker and once taken decisions more difficult
to correct.
3 Demands
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National parliaments should legislate to clarify meaning of Art 52
EPC in the sense approved by the majority of the European Parliament
in 2003 and
2005 (e.g.
according to the Ten
Core Clarifications)
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Liberalisation of patent examination system, introcution of polluter
pays principle: whoever can show a patent to be invalid has thereby
rendered the public a service for which he can charge reimbursement
from the patentee. The patentee thereby has an incentive apply for
narrow claims and to make sure they are valid. Patent examination
thus is no longer obligatory; instead, it becomes a private insurance
service, performed at the request (and expense) of the patent applicant.
This can be done by laws enacted at the national level.
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National parliaments should form committees for innovation policy which
send representatives to the Council of Ministers who should be able
to speak for their country
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Further internationalisation of the patent system by EPLA, ComPat or
SPLT etc must be avoided, unless they are subject to legislative review
by a democratically elected Parliament. In other words Community Patent
is ok if and only if the related patent laws can be made and reviewed
by the European Parliament alone.
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Full sovereignty in patent legislation must be taken back to the level
where democracy and division of powers exist, i.e. currently the national
level. Alternatively the European Parliament could be invested with
the full legislative power regarding questions of substantive patent
law.
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Governance problems of the European Patent Organisation must be solved
within 10 years, otherwise withdraw from the organisation. The patent
part of the TRIPs treaty should be deleted within 20 years, otherwise
withdraw from WTO. Replacement of the patent system with a copyright-like
“fast, cheap, narrow” IP right and possibly a set of sui
generis rights within 30 years, according to a schedule of stepwise
transition. There could even be a sui generis right for those achievements
that enrich our knowledge about causalities of forces of nature, which
is exactly what, according to the Dispositionsprogramm
decision of 1976, the patent system was supposed to be.
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No more tax money for patented research, no more obligation for professors
to patent under the name of their university, no “novelty grace
period”.
4 How to Make this Come True
The above demands are quite far from current reality. Putting them
into practise requires much more political momentum than opposing a
bad directive.
Yet, the bad practise of the current patent system is continuously
providing us with the opportunities for gaining momentum. We should
specifically do the following:
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step by step build up the FFII into a well-organized force
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form a community of mutual assistance against the destruction of innovative
enterprise cause by the patent system.
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improve our documentation, work with academia to better document patent
cases, have young students of IP law regularly attend interesting patent
hearings and report.
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communicate with the media, be available for comments whenever there
is news for which we might be considered to be worth quoting, use the
opportunity also to transport the general message at each occasion.
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publish calls to action where people can give us a mandate by their
signature
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conduct conferences with academia and politicians to study the issues
and to get our message transported
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make politicians who decide about EPLA etc aware that there is a debate
on the future of the IP system
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observe legislative agendas in various parliaments, seize opportunities
for motions.
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cooperate with various political parties in shaping their programs.
As PA Axel Horns warns his colleagues, the Schröder government decided,
under pressure from the small coalitiion partner, to phase out nuclear
energy in 30 years. It took a few decades for the ecological movement
to get there. It is difficult to predict how long it takes in the
case of IP system reform. The only way to find out is to do it.
5 Related Documents
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Industrial Copyright –
wiki page outlining toward what kind of exclusion rights system we
might want to move in the long term and collecting various proposals.
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Patent Examination Reform
– argues for shift of liability burdens to the patentee, who
should pay compensation to any private person who takes the trouble
of finding out and pointing out the invalidity of the patent. Thereby
patent examination becomes a private insurance service for those who
make broad (or trivial) patent claims.
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German pirate
party’s patent page
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Swedish pirate
party’s patent page
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Previous Calls to Action …
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