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Wednesday, November 28, 2007

CBS Copenhagen: "Licence of Right" in the Context Of The EU Community Patent Proposal.

Yesterday I enjoyed the privilege to have been invited to attend to an expert meeting held at

Copenhagen Business School (CBS) and hosted by

Mr Peter Lotz, Head of the Department of Innovation and Organizational Economics (see photo on the left). The core group of the attendees was made up by some of the members of the project working group entrusted with the preparation of the

Background document for the

STOA Workshop on Policy Options for the Improvement of the European Patent System held on June 14, 2007, in Brussels.

STOA is an official organ of the European Parliament, but its work is carried out in partnership with external experts. These can be research institutes, universities, laboratories, consultancies or individual researchers contracted to help prepare specific projects. The European Parliament defines its position on these issues through reports prepared by its Committees. If Committees decide that it would be helpful to their policy making role to seek out expert, independent assessments of the various scientific or technological options in the policy sectors concerned, then they have STOA at their disposal: the Parliament's own Scientific and Technological Options Assessment unit.

The STOA report mentioned above is concerned with the assessment of how the European patent system best fulfils the objective of balancing the exclusive rights granted to inventors with the overall societal concern of maximising technological innovation and distribution of knowledge. The report progresses from the starting position that the European patent system may be operating in certain ways and within certain sectors in a way that improvements can be made.

In yesterday's meeting (which was not in any way formally related to STOA but only sharing participants with the former STOA working group on patents), also representatives from the industry were involved (Mr Jonathan Sage, Governmental Programmes, and Mr Roger Burt, Head of IP EMEA, both of IBM).

The meeting had been scheduled in order to launch some sort of a cross-disciplinary evaluation on certain potential issues of future patent politics involving academia, industry, and patent practitioners in the fields of law and economics.

In particular, the

"Soft IP" approach

launched by IBM earlier this year served as a starting point for the discussion. IBM's proposal is in essence a proposal to re-vitalise the EU Community Patent project in the form of a patent without provisions for injunctive relief but with an intrinsically built-in Licence of Right. Most recent political processes in Brussels were discussed, and the conclusion was that there is a lot of doubt as to the real chances of IBM's undertaking: The EU Commission in fact has decided

to launch a re-vitalisation attempt of the EU Community Patent of their own, based on the

Common Political Approach dated 3.3.2003, except with an overhauled system of patent litigation. This attempt was recently

endorsed by the EU Council, and it does not come as a surprise that any attempts to re-open a debate on substantive law of the EU Community Patent appear to be quite unwelcome there.

And, Article 20 (1) of the

Draft Regulation of 08. March 2004 (Document 7119/04) does already have an opt-in provision for a Licence of Right.

In view of these developments the core of the IBM proposal can be seen, as Mr Lotz put it, as the transfer of the exclusive right into a remuneration right, and that the core issue to be investigated accordingly is whether this makes sense for any patent applicants. Or, framed in terms of society, can an Licence of Right scheme improve the functioning of the markets for technology?

This question does not have simple answers. It is planned to do further work, resulting in one or more publications.

So, stay tuned.

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