Pipe Dreams Of Locking Away Political Transparency
Until some fifteen years ago, it was common sense that internal proceedings of lawmakers in Government, Parliaments and Parliamentary Committees can’t be open to each and every interested individual of the general public: It was simply commercially infeasible to make photocopies of all relevant documents and send them out for free to everyone who would like to read them. Beyond the group of genuine members of such bodies there always has been a culture of establishing some sort of extended inner circle based on status and privilege where members thereof would receive prints of photocopies important papers via postal service. It was really a privilege to be part of such circles, and in the field of Intellectual Property legislation usually this status was reserved for dignitaries like Presidents of the Insitute of patent attorneys or the like.
At least in some fields commercial alternatives were available. I remember that in the 1980s I started an experiment on my own: Eager to learn about the inner workings of German politics, I subscribed to a relative small subset out of the full range of Official Printed Matters (Drucksachen) of the lower chamber of the German Parliament (Bundestag) covering legislative drafts and minutes of parliamentary debates in certain fields of politics I was interested in. Those Bundestags-Drucksachen were printed and distributed for a fee by a small publishing company Verlag Dr. Hans Heger located in Bonn. The monthly costs of this undertaking roughly amounted to the equivalent of a subscription to one of the major broadsheed daily newspapers like Frankfurter Allgemeine Zeitung (FAZ) or the like.
Hence, the postman started delivering piles of printed matters, and after a short while the floor of my living room was covered with a layer of unread parliamentary papers. Later I carried all that stuff down to the cellar, and some months onwards I had to pull the emergency brake and abandon the entire project because of all empty space was sucked off by piles of Official papers, most of them unread, of course. In the end, the experiment had utterly failed.
But then, suddenly the the Internet came in and was more and more accessible by private individuals.
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CIPA Tweet Reporting Ms Wilcox' Statement
Yesterday, in Berlin the German industry association Bundesverband der Deutschen Industrie e.V. (BDI) has held a conference titled Tag des geistigen Eigentums – Geistiges Eigentum verpflichtet (Intellectual Property Day - Property entails obligations). According to a report published on Heise’s Newsticker the topic of the pending proposal for a Unitary Patent was discussed.
Reportedly Mr Christoph Ernst from German Ministry of Justice (Bundesjustizministerium) has re-affirmed his expectation that a conciliation on this matter can and will be reached until next meeting of the EU Competitiveness Council to be expected end of May or in June later this year.
Mr Lothar Steiling, Director Intellectual Property with Bayer AG and President of the VPP (German Association of Intellectual Property Experts), is reported to have supported the proposed enhanced co-operation to create a Unitary Patent on behalf of those circles of insustry which have decided not to oppose the pending draft contrary to the dismissive language used especially be EPLAW. Another supportive statement came from Mr Andreas Thürer, Director Intellectual Property with Bosch Rexroth.
Ms Kerstin Jorna from EU Commission DG Internal Market is said to have argued more cautiously, considering that the proposal still might fail. She explicitly appealed to the representatives of German Industries to come forward in support of the Unitary Patent.
Furthermore, statements of FFII as well as of representatives of the German Piratenpartei are said to have expressed their concerns especially that the Unitary Patent might turn out to be a tool to facilitate legal acceptance of software patents (patents on computer-implemented inventions CII).
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Archives with paper files
A couple of years ago, in 2007 the European Patent Office (EPO) was pleased to invite to its annual Online Services conference, which that year took place in the Lake Como area, Italy, on 13 and 14 November. The conference theme was ‘End-to-end electronic processing – how to survive when the EPO no longer accepts paper‘. In fact, within the broader context of the European Patent Network EPN, the EPO strived to modernise itself by announcond advanced electronic digital network superstructures.
The intention was to eliminate paperwork also with regard to communication to and from the applicants, that is, in many cases, their patent attorneys, well before the end of the decennium; see Barbara Cookson’s report here. A message on the EPO website (which, meanwhile, is long gone) said:
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As already indicated in my earlier post, one of the mainstream topics of discussions in Germany concerning IP politicts is the stunning rise of the German Piratenpartei (Pirate Party) at least if recent polls can be trusted. As of April 18, 2012, a poll covering the entire territory of Germany attributes to the Piratenpartei a 13% share of the votes. This is remarkable, indeed. According to the same poll, the Greens could expect a 12% share of the votes and, hence, the Piratenpartei might well be called third-strongest political party in Germany. However, we should not forget that such polls usually have a substantial error margin and, hence, the reality might also be that the Greens have 14% and the Piratenpartei merely 11% of the votes. In any case, at least at the time being, the Piratenpartei appear to be well avove 10% and, of course, well ahead of the 5% quorum required to get seats in general elections.
In view of this situation we can see an increasing level of nervousness – if not outright panickiness – amongst other political parties which are feverishly considering all available options of how to cope with this new political force. It is entirely open to what end this development will lead. Some parties, in particular the Greens, might be mulling to inch towards Pirate positions in order ro regain ground in circles of younger citizens while others surely will prefer to fight agsinst the very tendencies embodied by the Piratenpartei. In this context and speaking to an audience of IP specialists living abroad I would also like to point out that the current political discussion of the Piratenpartei can by no means be reduced to issues related to IP rights. There are other topics, for example in the fields of welfare politics or related to defending civil rights which are of great importance domestically.
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Pirate Party delegates in Saarbrücken, Germany
The Pirate Party (“Piratenpartei” in Germany) is well known amongst IP professionals for their sceptic stance on the current state of copyright and patent law. This article is just to keep our readers overseas without regular access to domestic news from Germany informed on recent developments:
- On September 18, 2011, the Piratenpartei won 9% of the votes and got their first parliamentary group in a local state Parliament in Germany; see my earlier posting here.
- On January 26, 2012, the Parliament (Landtag) of the German State of Saarland took a decision to dissolve after the Saarland Government, a so-called Jamaika-Coalition made up of Christian Democratic Union (CDU), Liberal Democratic Party (FDP), and the Greens (Bündnis90/Die Grünen), failed to carry on due to severe internal disputes. Yesterday, on March 25, 2012, the Piratenpartei won off the cuff a whopping share of 7.4% of the votes, well above the 5% quorum, giving them seats in the new legislative period. Remarkably, the parliamentary group of the Liberal Democrats was extinguished by a crushing defeat materialising in a share of meagre 1.25% of the votes.
- In the German State of Schleswig-Holstein, the Constitutional Court objected to certain provisions of the electoral law, demanding amendments to the law and, subsequently, dissolving of the Parliament (Landtag). A General Election is due to be held on May 06, 2012. Recent polls dated March 16, 2012, show results around 5% to be expected for the Piratenpartei. The quorum for gaining seats will be 5%.
- On March 14, 2012, the Parliament (Landtag) of the German State of North-Rhine-Westphalia dissolved after the Social Democrat (SPD) minority Government was defeated in a vote on the budget. A General Election is scheduled to be held on May 13, 2012. Recent polls also show results around 5% to be expected for the Piratenpartei.The quorum for gaining seats will be 5%.
- On January 20, 2013, General Elections will be held for the Parliament (Landtag) of the German State of Lower Saxony. Current polls attribute to the Piratenpartei a share of about 4%. The quorum for gaining seats will be 5%.
- In September 2013, General Elections for the lower chamber of German Parliament (Bundestag) fall due. Recent polls show results around 6% to 7% to be expected for the Piratenpartei. The quorum for gaining seats will be 5%.
Last not least in view of euphoric feelings after the Pirate Party’s success in Saarland, probably creating a thrust of motivation amongst their party activists, I would be somewhat surprised if they don’t also make it into the Parliaments of Schleswig-Holstein and North Rhine-Westphalia later this spring. And afterwards, if they manage to avoid any severe PR-disaster having a potential to turn their party into a laughing stock, it is also likely to see them in the Parliament of Lower Saxony as well as in the Bundestag in Berlin next year. As there are literally thousands of newcomer volunteers lining up at party conferences and looking for participation it might prove a bit difficult for the party to make sure that no lunatics or polit trolls seize the floor for performing a show of their own.
Anyway, pepole involved in IP politics better should assume that Piratenpartei is likely to stay.
(Photo: (C) 2012 CC-BY Piratenpartei @Fek)
This is a follow-up to Volker ‘Falk’ Metzler’s previous posting titled In Defense of Articles 6 to 9 of the Unitary Patent Regulation and, in particular, to the discussion induced by it.
As can be learnt from the public discussion of the role of the Court of Justice of the European Union (CJEU) and of the European Court of Justice (ECJ) in the context of the planned Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection as well as with regard to the still unfinished Draft agreement on a Unified Patent Court there appears to exist – at least in some quarters – a sort of general discontent with the work of those judges presiding in Luxembourg over the entire body of EU law.
For example, our reader Derek Clapton (maybe a pseudonymous author identification?) puts his view on the CJEU in this brief summarising sentence:
To say that the ECJ “is the best functioning institution of the Union” is like saying that Amsterdam is the highest place in the Netherlands – possibly true, but an unimpressive boast nonetheless.
Well, I think it might be interesting to have some deeper insight into the factual basis of this damnation. Mr Clapton gives us a clue when he writes:
If, in answering questions such as how to determine the scope of protection of a patent claim, the ECJ introduces the same degree of uncertainty in patent law as it has in the case of trade mark law, the EU patent system will fail its users, which may lead to manufacturers deciding to locate new factories outside of the court’s jurisdiction. In such case, Spain may be well advised to remain outside of the proposed EU patent arrangements.
And another commenter Peter Lustig (maybe another pseudonymous identification?) argues:
Usually, one would expect renowned senior practitioners of his kind to join him and support his argumentation – there appear to be none so far. Also, the Article 6 to 9-issue is only one in a row of objections, some going to the very core of the project (e. g. the compatibility with the AETR case law of the CJEU) and still remaining unaddressed. With all due respect, but Professor Tilmann’s outstanding reputation should not be allowed to replace founded answers to legitimate questions.
And, even Dr. Jochen Pagenberg himself joins the line of comments by arguing, inter alia, as follows:
If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.
If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.
Well, is this real? It is fair to say that as a humble patent and trade mark attorney I never shall deal with those EU judges in Luxembourg myself. But I have to carefully read important decisions, in particular in the field of trade mark law. And, yes, there are decisions of the Court which I find questionable but that also holds for me when studying decisions from German Courts. A well-known and a bit semi-ironic German proverb says that in court and on the high seas we all are in the hands of the Lord, indicating that awaiting a decision of a Court always bears a momentum of unpredictability. Are the high seas of the CJEU / ECJ excessive in this respect?
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Will we ever find cases related to substantive patent law in here?
Articles 6 to 9 of the Unitary Patent Regulation relate to substantive patent law. They regulate the right to prevent direct and indirect use of the invention (Art. 6 and 7, respectively), the limitation of the effects of the ‘Unitary Patent‘ (Art. 8) and exhaustion of the rights conferred by the ‘Unitary Patent‘ (Art. 9).
As the question of which EU member state will receive the Central Division of the EU Unified Patent Court (see here, here, and here) is officially seen as the only remaining obstacle to the Unified Patent Court Agreement, the Unitary Patent Regulation already received green light from the EU Parliament’s legal committee (JURI) in late December (see press release) so that the EU Council already began to linguistically finalise the Regulation text in early January.
THE DISPUTE ON ARTICLES 6 TO 9
Even so, a strong and illustrious ‘opposition movement’ of legal professionals and their associations (e.g. EPLAW and Jochen Pagenberg, European Patent Judges and Sir Robin Jacob, Professor Krasser, CIPA), industry representatives (e.g. ICC, IP Federation), and a few politicians (e.g. JURI member Cecilia Wikström (SE, ALDE) [1, 2, 3] and UK IP Minister Baroness Wilcox) demanded Articles 6 to 8/9 to be removed from the Regulation to prevent substantive patent law from becoming subject to review by the European Court of Justice via referral questions according to Article 267 TFEU.
Seat of ... Federal Chancellor Angela Merkel in Berlin (Bundeskanzleramt)
In one of our latest postings on the legal and political shadows of the Unified Patent Court Agreement we concluded that the stuck ‘seat issue’ will now have to be decided on the top executive level, i.e. in personal talks between Federal Chancellor Angela Merkel, Prime Minister David Cameron, and - should he survive the French presidential election in April/May 2012 - Nicolas Sarkozy as the only serious and realistic bits were Berlin, London, and Paris, respectively.
While the German government always claimed the seat of a European Patent Court, should such court ever exist, London became a candidate rather late and only after intervention of the UK legal profession and Paris was considered a compromise location to prevent a deadlock between Munich and London. None of these bits is ideal for everyone as each has considerable drawbacks, as has been recently summarised on FT.com “few other EU countries are happy with a Munich seat because the city is already the home to EPO“, “Britain lacks goodwill or allies“, and “French inflexibility has been damaging“.
- Occurrence of the term “FRAND” in Google searches during the previous 12 months. In November 2011 (A) the EU Commission started investigations against Samsung due to possible infringement of FRAND conditions. In February 2012 (B) Google announced that the acquired Mororola patents will remain to be licensable under FRAND conditions.
In Part 1 of our series of two postings on political and business issues in the discussion on FRAND licensing in Europe, we sketched the EU Commission’s political approach towards maintaining free markets in times of standard-essential patents.
Now, in Part 2, we will have a closed look at what the various industry players in the ‘smartphone war’ say and do.
The ‘Smartphone War’: The significance of Mr Almunia’s agenda can be easily derived for the global patent conflict that initially started between Apple and Samsung and meanwhile, after months of infringement suits and injunctions, involves also essentially all other important Internet and mobile telco players such as Google, Motorola, Microsoft, Nokia and HTC. In an earlier posting we considered this to be a sort of stress test for the patent system as it currently is.
EU Commissioner of Competition Joaquín Almunia in November 2011
This is the first in a series of two postings – the second part will be published later today -, that relate to both the political and business attitude towards FRAND licensing in Europe. As there are two main players in that game, namely the EU Commission as the political market watch-dog and the Smartphone industry as patent holders and actors on these markets, we will first have a look at the political agenda of the EU Commission towards ensuring free market access in a world of standard-essential patents, as articulated in clear words only recently. In the light of the Commissions approach, the hint at the “Commission’s position as regulator-in-chief of the global technology industry”, as seen by the Financial Times back in 2007 , might never have been more true than today.
MISCELLANEOUS
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KSNH::JUR Feed (german)- Bundeskabinett verabschiedet Gesetzesentwurf zur Novellierung patentrechtlicher Vorschriften und anderer Gesetze des gewerblichen Rechtsschutzes May 9, 2012Wie die Bundesjustizministerin Frau Leutheusser-Schnarrenberger vorhin via Twitter mitteilte, hat das Kabinett heute unter anderem einen Entwurf eines Gesetzes zur Novellierung patentrechtlicher Vorschriften und anderer Gesetze […]
- Ist der Begriff “Geistiges Eigentum” obsolet? March 4, 2012Im deutschsprachigen Raum hat es sich eingebürgert, den Ausdruck Gewerblicher Rechtsschutz als Sammelbezeichnung für verschiedene Rechtsnormen zu gebrauchen, deren gemeinsamer Nenner darin besteht, bestimme Aspekte der kommerziellen Nutzung unternehmerischer oder gewerblich verwertbarer Güter und Leistungen immaterieller Natur zu regeln. Üblicherweise rechn […]
- Bundesregierung kämpft für München als Sitz der Zentralabteilung der EU-Patentgerichtsbarkeit March 2, 2012Bekanntlich ringt die EU – wenn ihre Organe nicht gerade mit der Rettung einzelner Mitgliedsstaaten vollauf beschäftigt sind – mit den Hindernissen, die einem EU-Patent (ohne Mitwirkung von Italien und Spanien allerdings, so wie es derzeit aussieht) noch im Wege stehen. Einer der Hauptpunkte des gegenwärtigen Dissenses scheint – soweit man das von […]
- FRAND als taktisches Mittel im ‘Smartphone War’ – Apple bringt Kartellrecht auch gegen Motorola in Stellung (Update) February 19, 2012In unserem gestrigen Beitrag hatten wir auf die Rede von EU Kommissar Joaquín Almunia vom 10. Februar hingewiesen, in der er auf die Bedeutung von FRAND-konformen Lizenzen (“fair, reasonable, and non-discrimiatory”) für einen freien Wettbewerb im Bereich von Technologie-Standards in deutlichen Worten zu sprechen kam. Demnach soll durchgesetzt werden, dass […]
- EU Kommissar Almunia zu Standard-essentiellen Patenten und FRAND February 19, 2012Am 10 Februar 2012 hielt EU Wettbewerbskommissar Joaquín Almunia unter dem Titel “Quo vadis Europa? New Frontiers of Antitrust 2012” in Paris eine Rede, in der er seine wettbewerbs- und kartellpolitische Agenda skizzierte und die insbesondere auch aus patentpolitischer Sicht beachtenswert ist. In der deutschen Übersetzung lauten die interessanten Passagen w […]
- Bundeskabinett verabschiedet Gesetzesentwurf zur Novellierung patentrechtlicher Vorschriften und anderer Gesetze des gewerblichen Rechtsschutzes May 9, 2012
