1 Latest Wiki version of Call for Action
see http://wiki.ffii.org/Cpedu0510En
Based on a draft by phm from October with enhancements by jmaebe.
Here’s some more material
1.1 Problems
(clumsy draft, to be streamlined)
-
The European Patent Office has in recent years granted 30-50000 harmful
patents on data processing rules against the letter and spirit of the
written law and is persisting in this practise, based on caselaw created
by the said office’s Technical Boards of Appeal and followed
by some but not all national courts.
-
The administrative arm of the EPO is lobbying for practises which it
claims were decided by an independent judicial arm. This fact alone
shows that the two powers are not separated.
-
The supporters of the European Patent Office have tried several times
to adapt the written law to reflect their new practise but each time
failed due to lack of public support. Yet the harmful practise is
continuing even without legislative support, and the EPO is promoting
it more aggressively than ever (–> “CII” microsite,
“CII” seminars all across Europe)
-
The European Parliament has at several occasions proposed clarifications
of the written law which would, if enacted, have effectively obliged
the European Patent Office to exclude data processing rules from patentability,
as intended by the law which is currently in force. However these
proposals of Europe’s only democratically elected legislature
have been frustrated by unreasoned resistance from the Commission and
the Council.
-
the EPO role as an executive, legislative and judicial body in one,
violating all principles of the separation of powers that have been
the standard since the 18th century.
-
the lack of coordination between patent and innovation policy, perhaps
even making the (common) mistake equating the two, BUT innovation policy
(considered vital but problematic in the Lisbon Strategy) encompasses
much more, like competition control, but perhaps more fundamentally,
the CREATIVE management of CREATIVE POTENTIAL, e.g. by phenomena not
understood by economists at all, such as OPEN SOURCE, OPEN CONTENTS,
etc. etc.
-
EPO not incorporated into EU framework
-
Community patent would duplicate structures
-
Commission introducing IPRED2,
a directive that reintroduces something that the EP refused before
-
Council introducing data retention directives refused by national parliaments
-
judicial system has proliferated, ISPs are ordering takedown of websites
and disconnecting web domains under the threat of legal costs, even
if the legal claims have no merit
-
digital signature is not advancing, functioning systems like PGP are
not recognised because of a certification system that effectively puts
everything under control of proprietary vendors (because these are
the only ones who can afford the certification)
-
EU has, as far as broadband access is concerned, fallen far behind
Japan and Korea because it followed an ideology of privatisation in
a sphere of essentially public services.
1.2 Solutions
-
European Patent Office (administrative arm)
-
stop lobbying for the caselaw of your boards
-
stop granting software patents
-
National Courts (and EPO judiciary arm): apply the law correctly, according
to its original spirit and to that of the 21 amendments,
-
name some positive examples of recent court decisions from UK &
PL
-
National Parliaments
-
pass resolutions and if necessary laws based on the spirit of the EPC
and the 21 compromise amendments
-
set up an organisational framework to effectively supervise the patent
system
-
EU Community Patent:
-
no Community Patent based on EPO caselaw or with EPO in charge of execution
as long as this problem is not solved
-
the examination system is a proven failure, debureaucratise
it first, then CP becomes easier
-
need fewer and more expensive patents, regulation should stay multilingual
http://www.eurolinux.org/news/cpat02B/
-
need fast legislative review process to keep up with fast advance of
technology: substantive patent law should be placed under the sole
responsibility of the European Parliament.
-
EP
-
pass a resolution based on 21 compromise amendments, ask CEC to provide
proposal based thereon
-
do not agree to a CP that hands over effective legislative power to
the EPO or Council Working Party
-
Council:
-
answer the 22 questions concerning 2005-03-07
-
do not oppose EP unless national parliaments require you to do so
-
reform the EU institutions so as to establish parliamentary democracy
-
Council + Commission: introduce directives only with national parliamentary
mandate
-
Commission: repect Parliament, withdraw Ipred2En (a directive that
reintroduces something that the EP refused before), instead introduce
directives based on what EP or national parliaments have requested.
-
all legislators:
-
no more across-the-board strengthening of “IPR enforcement”
and other judicial regulation of economic activities and public life
-
correctly weigh costs of judicial regulation of the knowledge economy,
cut it back where appropriate
-
greatly reduce the power of courts and lawyers to curtail the freedom
of publication on the Internet
-
we the undersigned do not want the judicial system to protect us against
defamation. Rather we believe that the Internet provides us enough
opportunity for the truth to be heard and to prevail by itself.
-
acknowledge the public nature of information-based goods and adjust
policies accordingly (…)
-
take Lisbon Agenda seriously
2 EU Patent
2.1 Problems
-
patent system produces much harm little good
-
examination system slow & broken
-
unaccountable & irrational legislative processes at the EU level,
no response to needs
-
europe’s biggest advantage is inefficiency and costliness of
its patent system
-
language problem: incisive deprivation on individual rights based on
claims formulated in foreign language
2.2 Solutions
-
abolish patent examination system, entitle invalidator to reward
-
substantive patent law (exclusion scope law) under exclusive competence
of EP
-
introduce easily machine-translatable EU language
3 Letter to Judges
-
current EPO practise produces (only) harmful patents
-
current EPO doctrine incoherent
-
Rocard-Buzek-Duff report represents public consensus
-
no program claims
-
technology = applied natural science
-
stop granting swpat
-
concretise the written law
|
|
