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Monday, July 03, 2006

EU Commission on Results of Patent Consultation: "Preliminary Findings: Issues for Debate".

The EU Commission, in view of the

2006 Patent Consultation, just has published a

Document under the title "Preliminary findings: issues for debate". The Document provides some statistics on the results as well as summaries of frequent answers to the questions as posed by the Commission. The conclusion is as follows:

"[...] Basic principles which need to guide the patent system in Europe are:
patent system must provide an incentive for innovation provided that patentability criteria are rigorously respected
it must ensure the diffusion of scientific knowledge and technologies by an efficient, transparent and complete publication of patent documentation
it must facilitate the transfer of technology
it must be available to all players on the market
it must offer legal certainty to the patentee and the users
Stakeholders are first and foremost concerned about maintaining and improving patent quality in Europe in order to avoid the shortcomings of some patent offices such as the USPTO. Industry is unanimous that innovation and competitiveness do not depend on the number of patents granted every year but on their quality and on the level of legal certainty which they provide. Cooperation with the EPO is considered crucial in this respect.

Furthermore, information and awareness activities must be enhanced so that industry and citizens are better informed of the value of Intellectual Property Rights and of how to use them. Industry is also concerned about the inadequate regulatory framework for technology transfer in Europe.

An idea of setting up an 'advisory body', which would give opinions or recommendations on legal issues concerning patents, was presented by the Finnish government is its submission. This body could be, for example, a part of the European patent organisation and would help resolving diverging national interpretations on the scope of the European patents. One idea, to leave patent litigation at first instance to national courts, is popular with other stakeholders
(especially the smaller business and individuals who are concerned about maintaining judicial proximity in the future patent jurisdiction).

Although there is widespread preference for the Community Patent as a way forward, stakeholders do not wish to have one at any price and in particular not on the basis of the key elements of the 2003 CPA. What they are looking for is an improvement over the current situation, a truly unitary high quality patent. If this cannot be achieved quickly and without major political compromises affecting the usefulness of the final solutions, then some stakeholders go as far as urging the Commission to withdraw its proposal and concentrate its resources on other issues, while many point to the EPLA as a possible solution to the current shortcomings.

Some stakeholders (many SME associations and organisations) put forward the idea of setting up regulatory framework for mediation as a means of alternative dispute resolution in patent cases, with the exclusion of issues of validity of a granted patent. This suggestion merits further reflection and its viability should be analysed.

Whatever the outcome of efforts on the Community Patent, stakeholders look favourably at EPLA as lack of uniform litigation for European Patents is the main obstacle to an efficient patent system in Europe."

The preliminary report further indicates that a submission prepared by the FFII was endorsed by over a thousand respondents, counting corporate and individual software developers, other IT professionals and academics among them. This submission points out to the fact that the patent system is driven by the public incentive rationale and as such must have the promotion of innovation as its primary objective while interests of users remain a secondary concern. As a result, the patent system should only cover areas where its productivity in terms of increased innovation and knowledge dissemination are proven. Secondary to the objective of promoting innovation are the substantive patent rules which define patentable subject matter and ensure that the primary objective is respected. Only in third place come issues on which the consultation was focused: cost and litigation structure. According to the preliminary report, this group believes this focus to be erroneous and proposes to first engage in a debate on the primary and secondary objectives.

The preliminary report finds that the patent attorney community, while divided by nationality in some respects, was largely united on basic principles. FICPI underlined that the dispute resolution system should be 'cost-effective' rather than inexpensive in order not to compromise its quality. A recurring theme was the necessity to apply high quality standards which alone can guarantee that all users are served without favouritism. FICPI emphasises that although the patent system in a necessary prerequisite for innovation in a free market, it is far away from being sufficient.

German patent attorneys insisted in their collective institutional reply that there is no reason for a political debate on principles concerning patent protection in view of ethical behaviour, protection of the environment, health protection, or freedom of information. According to the Institute, this also holds with regard to software and biotechnology. however, the preliminary report points out that Polish patent attorneys pointed to the necessity to ensure proper balance between interests of patent holders and those of the general public and to guarantee equal accessibility to the system for small corporate or individual applicants, as well as for multinational players. The report says they also underline the necessity to grant citizens access to the patent system in their own language. Other national patent attorneys' also plead in favour of multiple-language regimes.

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