I think it is proper to say that in view of Intellectual Property politics in Europe 2006 was a year of reflection, not of action. There have been numerous public consultations, the Public Hearing on Future Patent Policy in Europe conducted by the European Commission and, on a UK national level, Gowers Review on Intellectual Property, being the most prominent examples of them. Some other public consultations are listed here.
And what appeared to be the result of them?
At first, I would like to note down that those times appear to be over when anti-patent campaigning groups managed to exploit public consultations by motivating thousands of their followers to send in very similar statements e.g. against patentability of computer-implemented inventions derived in a boilerplate fashion from a few templates provided and distributed over the Internet by those groups, thereby overwhelming in sheer quantity any other groups of stakeholders not so savvyly utilising the Internet for campaigning. The responses obtained in 2006 look as if they might represent a broader range of stakeholders than that what was received, for example, in response to the consultation of the EU Commission on the patentability of computer-implemented inventions more than six years ago.
The said anti-patent groups, some of which should be better described as anti Intellectual Property organisations, suffered a major problem in 2006: They had no actual and reliably workable campaigning project. The year 2005 saw the final showdown on the EU Draft Directive on the patentability of computer-implemented inventions or, as some prefer to say, software patents. There was nothing like that this year. Some tried to create a new campaigning project around the EPLA by arguing that the entire EPLA is nothing else than a most sinister plan to make software patents enforceable throughout Europe. But the argument was not only pointless (that alone would not have consititued a bar to exploit it) but also long winded, difficult to communicate and thus probably not very well suited to stir emotions for mobilising the masses again as they had managed to implement in the previous years. Others fancied some radical politics of patent law abolishment (like Mr. Hartmut Pilch, former Vice-President, now Treasurer of FFII) or of shutting down the European Patent Office (like Mr. Pieter Hintjens, President of the FFII). It appears to me as if none of these proposals has won the hearts of a majority of the crowd. Now they are doing some research on how to go on in 2007. Furthermore, a pan-European network of Pirate Partys has emerged with unclear prospects, a part of them fostering patent abolition projects, others demanding reforms. Patent people should stay tuned.
Secondly, it has become apparent that many users of the patent system in Europe would very much like to see the London Agreement to enter into force as soon as possible in order to reduce the translation costs for European Patents. There is also considerable support for the European Patent Litigation Agreement, or EPLA. Although it was a blow for Mr. McCreevy, the support for his European Community Patent pet was virtually nil. However, that does not mean that the London Agreement or EPLA will become reality very soon. At least with regard to the EPLA but perhaps also in view of the London Agreement, there are bitter and entrenched backstage fights between various vested interests. Also Mr. McCreevy had to admit feeling that the patents area is a minefield, fraught with difficulties.
There might, however, be some reasons for cautious optimism with regard to the London Agreement because of the French Constitutional Court has given its nod so that the crucial ratification by France might happen in 2007. But the EPLA is still in trobled waters.
Thirdly, it appears that the sectoral topic of reforming the law of patents on computer-implemented inventions is virtually dead. Gowers Review recommends that a policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes should be maintained.
The actual use as well as the political support of the patent system by established companies in more traditional branches of the industry appears to be unbroken, and the numbers of patent filings in many countries are still on the rise. Moreover, I have the impression that as much as China launches its self-transformation from something like an extended workbench of the old industrialised west into a knowledge society in its own right, patent awareness in China by local Chinese companies might steadily improve.
So, let's take full steam ahead and damn' the torpedoes?
Not exactly.
The fact that various groups of anti-patent campaigners did not gain much ground in 2006 does not necessarily mean that there haven't been any problems with the present system of IP protection. While there are also severe hotspots in Copyright law, in particular in view of negative side-effects of DRM protection and of the anticipated WIPO Broadcasting Treaty, I shall confine my discussion now to patent matters.
In particular, there appears to be a problem where no workable solution seems to be devised so far. As it is (or should be) well known, the patent system has four interfaces to the general public:
A first interface directed towards those who have invented something and are seeking for patent protection (patent application).
A second interface directed towards those who want to enforce a patent (patent litigation).
A third interface directed towards those who want to assess the validity of a patent by establishing the proper relationship between claim language, on the one hand, and prior art, on the other hand, anywhere outside of the Patent Office (prior art search, opposition, and nullification procedures).
A fourth interface directed towards those who want to reseach their freedom to operate with regard to some piece of technology and are seeking advice as to whether or not that technology might fall under any to be unearthed patent of some third party (patent reconnaissance and analysis).
Whereas the first and second interfaces are well recognised and developed further, the third, and very in particular, the fourth one look as if they would still suffer a somewhat murky and shadowy existence.
One of the most exciting projects within this context undertaken in 2006 was, in my humble opinion, launching the Community Patent Review. It attempts to attack specific scaling problems concerning the third interface as mentioned above. I do not know as to whether ot not it will eventually become a success story. But it is utmost interesting because the general principles underlying its approach might in future also be utilised for improving the fourth interface of the patent system.
Several problems associated with those second and third interfaces of the patent system have caused much trouble in the past. There is a broad feeling that, in view of the third interface, scrappy patents might perhaps have been granted by various Patent Offices in the world during the past decade because of their unability to cope with massive surges in order of magnitudes of patent applications and prior art. In Europe, the Patent Offices seem to be highly aware of the perils for the entire patent system coming from that direction, and in particular the European Patent Office has made public several efforts to improve the situation. But with regard to the fourth interface there appears to prevail silence, bewildering and driving away from the patent system in particular high-tech start-ups.
Another interesting tendency that become visible in 2006 was the increasing interest of the financial world in the system of Intellectual Property. Insurance companies and even banking companies doing technical research (e.g. in the context of risk modelling) are discovering patenting as a viable business tool, and patent holding trusts, sometimes denounced as "patent trolls", are busy to create new ways of funding research. Workable patent auction formats have emerged conveying the prospect of creating more liquidity in patent-based technology markets.
With regard to the day-to-day business of advancing international treaties on the field of patent law, no substantial progress has been achieved in 2006. The WIPO approach to a Substantive Patent Law Treaty appears to be quite dead, and more informal attempts to gather together a coalition of the willing might also be futile.
Note to self: In my view patent attorneys appear to be traditionally very concentrated on the first and second ones of the four interfaces as mentioned above, risking to lose influence by neglecting the two others. Moreover, the profession seems not yet to have grasped the potential changes of the attorney-client relationship if trusts based on venture capital should step in as intermediator between the engineers and other technical staff doing the actual inventions, on the one side, and the patent authorities on the other side. Very few patent attorneys appear to be really interested in economics, e.g. patent valuation problems and due diligence work. What will happen to them if the attorney-client relationship should, in future, no longer be determined by the technical management of the client companies alone but also by managers with MBAs running patent financing trusts? And, on the Internet there is still few contents concerning Intellectual Property originating from the patent people. Journalists and politicians querying their respective favourite search engine for IP-related topics will also in 2007 most probably get a skewed and biased impression of the real situation. Hiring an advertising agency does not look like a viable solution. The factual requirement of our time to act not only as a practitioner but also as a publisher without prospect of immediate remuneration for such activities has not been acknowledged widely in the profession. Many websites of law firms in the field resemble something like a static prospectus turned into a web presence, not content usable in the given context. Statistically, blogging (or something like that) remains a rare exception.
I wish the readers of my blog a happy and prosperous new year 2007.
Feel free to contact PA Axel H Horns via e-mail
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
Public Hearing on Future Patent Policy in Europe conducted by the European Commission and, on a UK national level, 
Intellectual Property
