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Wednesday, April 18, 2007

On the New Political Strategy Of FFII.

On Tuesday May 15th, 2007,

FFII will have their third Conference on Patent Law

EUPACO-2 in Brussels. According to FFII, topics are:

What is the future of the EPO and the national patent offices in an integrated Europe?
How can Europe's patent system be re-engineered to overcome its fragmentation?

Guess who will be the keynote speakers.

Mr. Richard Stallman? Or,

Mr. Hartmut Pilch?

No.

The list of speakers includes, inter alia:

Mr. William Kovacic, Commissioner, Federal Trade Commission (U.S.). Mr. Kovacic previously served as General Counsel for the FTC at the time of its landmark study, To Promote Innovation, The Proper Balance of Competition and Patent Law and Policy.
Mr. Ron Marchant, former Chief Executive and Comptroller General, The Intellecutal Prioperty Office, formerly The Patent Office (UK).
Dr. Bruno Van Pottelsberghe, Chief Economist, EPO.
Mr. David Ellard, EU Commission, DG Internal Market.
Dr Roger Burt, Intellectual Property Law Counsel, IBM Europe.

What is the political message behind this list?

It should in particular be noted that Mr. Burt of IBM had already been speaker on the previous conference

EUPACO-1. There must be something going on motivating IBM to send Mr. Burt to FFII twice within a short time interval.

I think that it is quite clear that under its President

Mr. Pieter Hintjens the FFII is more eager than under his predecessor Mr. Hartmut Pilch not only to serve the interests of the moralist subgroup within the crowd of the FFII followers. It appears as if FFII wants to gain political influence by acquiring a more pragmatic appeal. In the announcement of EUPACO-2, FFII write:

"[...] Patents are moving from an isolated specialist area of law to center stage in the global political economy. Patent policy today is a matter of public debate with holds profound implications for innovation, economic growth, health, communications, and the generation, management, and dissemination of knowledge.

In Europe, there is unresolved controversy over software patents and the inability to reach political consensus on the community patent, EPLA, or other approaches to integrating the European patent system. However, debate among scholars, stakeholders, practitioners, and the public has provided insight into how the patent system of the future should look. Recent economic research raises questions about the relationship of patents to R&D in some fields, and there is growing concern about how SMEs can participate in a costly system. [...]"

Recently Mr. Hintjens

picked up the

open letter of patent Examiners, arguing:

"[...] The patent system will explode for a very simple reason: software patents, combined with the greying of West's industries. The collapse of product-driven innovation makes US and European big industry desperate to turn their temporary lead in some areas into a longer-term hegemony. Ok, so we can't make our own products any more, but we can damn sure tax those Chinese on every product they make for the next twenty years.

Software patents are that tool, and the patent offices have been the compliant partners in hacking the patent system to allow these.

And having opened Pandora's box, there is no way to close it without radical changes. There is no quality filter that will stop the explosion in software patents. "Quality" is a buzzword but it'll become a curse in a year or two, as the backlog of patents continues to grow without respite. it's not just bad-quality patents that are spamming the EPO and other patent offices. Even good software patents (given any conceivable definiton of 'good' that the patent offices can define) are so numerous and complex that they will snarl the system to death.

It now takes 7-8 years to get an EPO patent examined. When the backlog hits the symbolic 10 year mark, things are going to get really crazy.

The only fix to the patent system's woes is a global ban software patents, and if policy makers still need some form of reward for documentation and publication of engineers' secrets, something like the Ethical Patent.

As the Campaign for Ethical Patents put it: Less is more. [...]"

So, the political strategy seems to be clear:

In a first step, analysing critics of the current patent practice, identifying issues that are brought forward not by conventional anti-patent grassroots activists but by experts and/or insiders of the patent system like Examiners or representatives of the Industry;
In a second step, promoting re-interpretation of the issues identified in the first step mentioned above to foster own political objectives like a ban on patents on computer-implemented inventions and the like.

In the effect, widely discussed matters like scaling and quality problems are re-interpreted towards a ban on "software patents".

I am a little bit concerned that FFII might, at the end of the day, be quite successful with this strategy because of they have got the chance to fill a void which has been created during the past years by virtue of some sort of selective inactivity of other stakeholders. Is it allowed to consider that traditional institutions have long been (and perhaps are still) much to apologetic of each and every of the particular features of the patent system as it stands now? Can we exclude that some people therein might, for example, fear that any open discussion of scaling problems of the patent system might not automatically lead to a better, improved, and strengthened patent system but to a contribution to the political destruction thereof? In the past, the EPO has undertaken some efforts to offensively approach the problem of patent quality but I do not know as to how much this has carried into broader circles of the patent community outside of the Patent Offices. The FFII, in its more pragmatic outfit, advertises to create opportunities for publicly discussing alleged and/or actual shortcomings of the patent system on expert level.

In the era of the Presidency of Mr. Hartmut Pilch, FFII did not count much on established experts from the patent community. To the contrary, Mr. Pilch had explicitly argued that patent experts could not be trusted because of similar shared career paths and interests. Like Mr. Stallman, Mr. Pilch seems to be more like a moralist than a pragmatist. His successor now appears to be willing to attempt to harness the expert's brainpower for the interests of FFII. If he should be able to manage the re-positioning of FFII this way, his organisation might well become a hub for public discussions of any patent reform approaches irrespective of whether or not the traditional stakeholders of the patent system like it.

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Axel, thank you very much for your write up of EUPACO-2.

This really is not an FFII event any longer, though we hope to take some credit for having launched the idea. EUPACO has become a self-sustaining project, in which the speakers are helping to organize the event, choose the topics, and drive the direction. Perhaps this is why many of the speakers from EUPACO-1 are returning to the EUPACO-2 event. The patent system concerns us all, and it seems safe to bet that any future solution to the questions of quality, diversity, and institutions must come from broad debate.

My personal views � which I feel happy to write about on Digital Majority and elsewhere � do not have any privileged space in EUPACO. I'm pretty confident of my views, but also happy to be proven wrong. Hopefully EUPACO will produce answers to some of the thorny problems that no-one seems willing to answer right now.

# posted by Pieter Hintjens : 19 April, 2007 16:25