In Janurary this year I was happy to report that

In a move towards greater transparency, the European Patent Office is improving the access to the documents of the Administrative Council of the European Patent Organisation. Under this new policy, all public documents of the Administrative Council will be made available after each session and published on the EPO’s website. The documents of the October 2012 session are already accessible.

Well, let as have a look what actually has been published there

Today, on August 30, 2013, I can see there a whopping bunch of 17 (seventeen) publicly accessible AC documents dated 2013, most of them reflecting minor technicalities. Even without having any privileged insights into the inner workings of the AC I feel much on the safe side to assert that just 17 published documents are a trickle compared to the full registry of documents circulated in that body during that time period. And, even this publication of a tiny minority of CA documents has not been announced widely and is hardly to find on the website of the EPO if you don’t already know where to look.

There appears to be only one valid conclusion: The public repository of CA documents as we see it now merely is sort of a fig leaf excuse for not wanting to have much insight into the CA business for the general public.

In this context it is important to closely examine the responsibilities: It would be grossly unfair to blame EPO personnel for this misery, Surely the general policy governing the public availability / confidentiality of CA documents is defined by the CA itself, not by EPO or its President. And the CA is made up of Representatives appointed by the EPC Member States (see Article 26 EPC). And those Representatives are not only selected by their respective national Government but also instructed, briefed, and supervised by the ministry in charge with IP politics (in most cases Ministry of Justice, I’d guess).

This means that on a high ministerial level the general thinking is that it would not be good to give plenty of information out to the general public about the proceedings of the CA of the EPO.

But it goes from bad to worse.

It is not only common thinking of our European political elite that detailed information from CA documents should be withheld. It was the same game when ACTA was negotiated. And, last not least, it was not any different when the deliberations concerning the Unified Patent Court (UPC) were held.

In the context of the latter I have seen an interesting paper from Dr. Ingve Björn Stjerna, LL.M., a German Lawyer and Certified Specialist for Intellectual Property Law seated in Düsseldorf titled „Unitary patent“ and court system – The „sub-sub-suboptimal compromise“ of the EU Parliament. The subject of this paper is as follows:

As is well known, in its meeting on 11 December 2012, the European Parliament adopted the so-called “patent package”, consisting of the Regulations on the “unitary patent” and the translation regime while agreeing to the conclusion of an intergovernmental Agreement for the creating of a “Unified Patent Court System”. The “unitary patent” Regulation is based on a compromise proposal of the (former) Cyprus Council Presidency which was discussed by Legal Affairs Committee of the European Parliament in a special meeting on 19 November 2012, the public was excluded. An audio recording of the meeting, which recently became available, shows the motives for the acceptance of this “compromise” which one of the rapporteurs called “sub-sub-suboptimal” and “a bad solution”
there. The course of this meeting shall afterwards be described and assessed in more detail.

By his meticulous work Mr Stjerna gives us a peep through the keyhole of the locked doors shielding the final phase of the negotiations for the final version of the Unified Patent Court Agreement (UPCA) as signed earlier this year. And what we can see there is not very much appetising.

After the opening of the Internet to the non-academic world in the years after 1995, there was an enthusiastic move to use the new digital technologies for making government-related documents accessible to the general public. It was the time when patent documents and statute books became accessible as PDF files (albeit it was a long way against many forms of resistance from vested interests). The EU opened a huge portal offering a vast amount of official documents, including from the EU Council.

In the meantime, members of the political class  and their support staff have experienced that, in some cases, information freely put up for grabs on the Internet may translate to power. In particular to the benefit of the general public or individuals or NGOs claiming to act on their behalf.

In recent years, more and more relevant documents are kept secret again. For example, the Public Register database of the EU Council increasingly publishes a great many of documents only by some of their metadata, not with any contents.

Today, within an era when apparently our political elites in the western world choose to fund sort of a huge shadow Internet for secretly collecting vast amounts of data from citizens and businesses, discontent grows in view of the widening gap between, on the one hand, our political elites, obviously inapt to solve real problems in a proper way, but at the same time accroaching to learn of all our digital communications going on, and, on the other hand, the general public, perceiving that one item after the other gets resolved poorly or goes down the drain anyway and, at the same time, feeling increasingly shielded from relevant information needed for judging on the performance of our political class.

Hence, what we can see on the stage of IP-related politics appears to be a mirror image of wider problems in nuce.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

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