"[...] There are three major challenges to the future design of European IPR policies. The first is harmonization. If the EU is to become a region in which innovation can be undertaken without being impeded by national barriers, there is a clear need for coming to truly European IPR policies and institutions. That includes harmonized interpretation of IPR laws, harmonized court proceedings and the introduction of legal institutions (final instance courts) which resolve cases that have been highly controversial. [...]
A second important requirement is the focus on balance. The naive notion that more and stronger IPRs are always good for innovation has been refuted by scientists in empirical and theoretical work over the last decades. Balance in copyrights means that fair use rights of consumers have to be taken seriously. In an age of increasing importance of user-generated content, the public domain should to be strengthened. Balance in the patent system may require to strengthen the position of follow-on inventors who build on earlier inventions. But it also means not to crowd out processes (such as open source software) which depend on a vibrant public domain which is not 'burdened' by IPRs. Balance also means to avoid policy capture - IPRs can become the instrument of entrenchment in the hands of established players. Competition policy needs to analyze IPRs carefully in order to prevent their abuse quickly when it becomes apparent.
Third, IPRs that are awarded on the basis of an examination process should be of high quality in the sense that they create legal certainty, rather than uncertainty. European institutions, in particular the European Patent Office, should seek to grant high-quality patent rights which are based on tough standards for novelty and inventive step. Contrary to some reports, a transition to tougher standards is supported by many users of the system. Cutting back on strategic patenting, abusive tactics and strategic manoevring by applicants would make the system more transparent and also support European SMEs. These are at a financial disadvantage when it comes to the buildup of strategic patent portfolios. The response should not be to cheapen the creation of strategic patent portfolio and patent thickets for all players, but to sanction and reduce those activities that are deemed harmful for innovation and competition. [...]
IPRs have a very important function, and without proper design of the European IPR system, innovation will suffer. Somewhat paradoxically, the greatest danger is not - at this point - that IPRs become too weak to support innovation. A far more serious concern at this point is that by strengthening IPRs in a naive fashion, the system becomes unbalanced. In that case, sequential innovation - in the field of creative works and inventions - may be deterred by overly strong and broad rights. In the area of copyright, a new balance between commercial and private, non-commerical interests needs to be sought. A free flow of ideas and information needs to be maintained in order for Europe to achieve its ambitious objectives in the field of innovation. In the area of patents, focus on quality and tough standards is required in order to thwart off increasing tendencies towards abuse of the system. Towards the improvement of both systems, it is helpful to recall that they are meant to serve the citizens of Europe at large, and not a particular group of stakeholders or users."
Mr. Harhoff's pleading for pan-European harmonisation appears to be uncontroversial if taken on a more general level. The problems start, however, when going into the gory details of practical harminisation politics. This has become clear once more only a few days ago.
With regard to the problem of establishing a proper balance between private Intellectual Property and the Intellectual Commons, most probably an agreement on abstract concepts might be reached amongst many stakeholders with regard to patents (but surely only if Mr. Stallman is not involved). However, in this context it should not be forgotten that with the failed EU Draft Directive on patentability of CIIs the EU Commission had intended nothing else than to codify some sort of status quo as defined by a snapshot of the case law of the Boards of Appeal of the European Patent Office. What actually had happened then was a vigorous approach conducted by various groups of anti-patent activists to cut back the realm of patentable subject-matter well beyond what had been deemed patentable for long years. Hence, the situation in the patent theatre might be somewhat different compared with that in the copyright game where the deployment of DRMs in the market as well as attempts to extend the lifetime of copyright exclusive rights gave a different picture. In reality, the patent community in Europe is nowadays in a defender's position struggeling to maintain some status quo, not playing the agressor's game to extend the realm of patentable subject-matter, indeed.
Mr. Harhoff's demand for high quality patents appears to be in perfect alignment with Mr. Pompidou's position.
But I do not see the point in that what Mr. Harhoff calls "strategic patenting, abusive tactics and strategic manoevring by applicants". Maybe that doing so is nothing else than legitimate exercise of exclusive rights.
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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:
Dr. Dietmar Harhoff is Professor at the 
only a few days ago.
