EpEpoDayQuest050330En

PLEASE NOTE THAT THIS IS AN UNSORTED COLLECTION OF UNORDERED QUESTIONS

EPO information day at EP

Program

XXX FFII random notes (to be removed!)

prepare recording/stream?

Three questions below are in French. They should best either be translated or eliminated because they are duplicates.

What kind of idiotic meeting is this? The EPO belongs to the executive branch and is not supposed to take the initiative to spread propaganda for their services with the legislative branch. Yes, they make money with each granted patent, with the destruction of the public domain, and almost approach this as a commercial company. Despicable.

Imagine that a national department of Construction and Housing Oversight starts promoting building permits.

participants ehj, jeroen, bkaindl

recording with "mini-jack" mono plug 3.5 mm for new rooms, "banana contacts" (flexible) for older rooms. The old system has two holes, so you need two banana contacts.

Questions for MEPs to ask EPO:

• If the practice of EPO is legal according to EPC, there is no need for a new directive. If it is not, then the EPO is at fault. Which is it?
• Bill Gates has stated that software patents would bring the software industry to a "complete standstill". What makes the EPO think Bill Gates was wrong?
• Is it true that one conclusion from the diplomacy conference in 2000 was that there should be a tighter political control of EPO?
• EPO and the EU are both independent international bodies, created by a treaty. Would you agree you are competing for power and jurisdiction?
• Which of the Council's Patent Policy Working Group members are working or has worked or has been contracted to work for the EPO, or has a position at the EPO?
• How does EPO assess quality difference to USPTO
• Oppositions are very few, is this due to quality or distance to market?
• How would you clean up if directive rejected? (how will you fix, if Dir rejected)
  • The practice of the EPO is established on the basis of court decisions so there is nothing to change for the EPO if the directive is rejected, we also already conformant to the current text.
• Is it possible to get an interpretation of CII/Program Claims by the enlarged board of appeal?
• Economists argue that a higher fee will improve quality.

• What is the proper name of US Class 705 patents (business method patents) (see Stefan Wagner study )

• Is the "community patent" and EU EPC membership independent steps or the same step?
• Is the EPO involved in reporting cartels to the Commission?
  • The EPO is not a trade agency
• How is the democratic control on the EPO?
  • The EPO is controlled by its administrative council in which the member states have their say
• The logo of EPO info day is saying "idea + patent = innovation". Which economic study supports this conclusion?
• Does the EPO make the granted patent claims only available as in graphical (non-textual) form? If this is so, then why?
• Word processing not as technical as sound encoding?
• How much money do you make?
• Were you involved in drafting?
• Does the EPO grant any software patents at all?
• What is a software patent according to the EPO?
• Did you abandon the "core theory" to be able to patent software?
• Why did you abandon the "core theory"?
  • did they ever follow it??
• Which directive would you like Council "Common Position", not directive, a directive based on European Parliament first reading of 2003?
• There is a economic study on the french patent office saying it looses money from rejecting patent applications, is the same true for you?
• Is it true that the SACEPO and Council IPR group are the same people? Is there an ovelap at all?
• Is this directive an exercice to define EPO terminology?
• is there a problem for the EPC patent examiner to guarantee quality under current rules?
• do you gave a quality problem?
• is patent quality decreasing or increasing?
• Would you like to be able to run you own opposition procedures, or open up new possibilityos for the public to run opposition procedures?
• Would you like to introduce new quality controles?
• Do you have an emergency break? A button "STOP PROCEDURE"? Would you like to have one?
• Would you need more stringent criteria for patentability? What is your opinion of the EPC?
• You are granting knowledge ownership, how can you guarantee quality?
• Do you grant software patents?
• Would you like to grant software patents?
• Do you think yourself you have a legitimacy problem visavis your "mandate" (to promote innovation)?

• 1- We learned yesterday that India has decided to drop the issue of software patents from its new law drafted to fulfill its TRIPS-WTO obligations. This might be considered surprising for a country that is making considerable and successful investment to be one of the top software economy on the planet. How do you explain their choice ? 2- According to the FLOSS studies (in Europe and in the USA), Europe represent more than 60% on free software development capability in the world. How do you assess the risk of introducing software patents for free software. Given that the cost of proprietary software is several tens of thousands each year for the european economy, and more than 10 thousands for Microsoft alone, have you analysed how you will recoup that cost that would largely be saved by the deployment of free software in Europe. 3 - Quote from Bolkestein in the Parliament debate on 23th september 2003: "The proposed directive does not aim to abolish this EPO

  practice nor to extend it. [..] The proposal the Commission seeks to harmonise and to clarify; but nothing will become patentable which is not already patentable now." If the practice of EPO is legal according to EPC, there is no need for a new directive. If it is not, then the EPO is at fault. Which is it ? Do you consider that EPO practice has evolved over time enough to need clarification of EPC ? If yes what independent economic studies have been conducted to justify this evolution, which is now taken as a status quo to be enshrined in a new law ? 4- Could the EPO please give examples of actual patents that would be disallowed by the Parliament's version of the software patent directive, that the EPO consider would be detrimental, and explain what about those patents that really should need patent protection ? 5 - Patents are like smoking. Smoking costs to the smoker, but the smoke is also dangerous for other people who do not smoke. Similarly patents are expensive. They are expensive for people who get patents, but that is their choice. But they are also expensive for people who do not want patents, because they have to deal with the risk of infringement suits, whether justified or not, and also to devote time and resources to search patent litterature for potential infringement risks. Given the complexity of software, and the low level of required investment, compared to hardware production, this has a significant impact, as high a 2% of gross income (even when one wins every infringement suit), and can kill the weaker companies. Have you assessed that cost over the whole ICT economy ? How do you intend to protect non smoker, while all known proposal are about insurances to help smokers buy and light their cigarettes ? 6 - All empirical studies show that patents are, in the terme of a large British investigation, irrelevant for SMEs (except in pharmacy). Given the high risk represented by infringement suits, the whole patents systems seems to be mostly of negative value to SMEs, even if there are a small number of exceptions. The reactions of most patents bodies is to state that SMEs are wrong and should be educated. Apparently forcibly educated to fit your idea of how the economy should work. How do you reconcile that with a liberal view of economic development ? Why should you, administrative body, know better than entrepreneurs who risk their personnal asset in their company ? 7 - Do you think it is your place to be lobbying for more patents ? Are you being impartial ? Where is your assessment of the positive and negative aspects of patenting.

• The purpose of any patent system should be to promote innovation and thereby economic growth and general welfare for the society under consideration. Any protection of any individual's or corporation's patent claims should be subordinate to that general interest. Therefore, when changing the rules and practice for a patent system, the burden of proof that the change is in accordance with the overall goal, lies on those who want to introduce the change. There exist empirical studies that suggest that in the case of software

  patents, there is even negative correlation between patent rate and innovation at the firm level, cf. "The Software Patent Experiment", Robert Hunt, James Bessen , Federal Reserve USA, 2004-03-16. (http://www.researchoninnovation.org/swpat.pdf). What is EPO's answer to this study? Does there on the other hand exist empirical studies that show a postive link between the rate of sowftware patents, innovation and economical growth for society as a whole?

How do you assess the statements in your invitation?

• Without patents, innovators would be offered no possibility of recouping their investment. Without patents, innovators would have no incentive to develop their inventions. Without patents, innovation would remain secret. Patents promote innovation, technology transfer, investment, consumption, economic growth and jobs.

• "more patents => more innovation" (knowledge- economy or bureaucracy?) or is this just another classic case of cum hoc ergo propter hoc?

"How do EPO asses that the fee-based financiation does not affect the quality of granted patents?"

"Patents create private monopolies and increased bureucracy in exchange for innovation. Are there any research that examines how this affects society? How does one compare the positive effect of increased innovation with the destructive effect of private monopolies and increased bureucracy?"

• Bill Gates stated in a memo fourteen years ago that "if people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today".
• Does the EPO agrees with this view?
• If the answer to #1 was "yes" (are you sure?), what evidence does
  • the EPO have to support this? How does this evidence compare with publications and statistics that support the opposite view?
• In light of the previous question, does the EPO not agree that the
  • issue is highly controversial at best? Why does the EPO think that might be?
• Would the EPO briefly describe the interest groups a) in favor and
  • b) against the concept of taking out patents on software. Why is it that such a large number of SME's oppose/strongly oppose the idea?
• [ Insert question regarding EPC articles 52(2) and 52(3) here. ]

Is there a difference between "software is not patentable as such" and "ideas of software are patentable"? Y/N/Abs

Quote from Bolkestein in the Parliament debate on 23th september 2003: "The proposed directive does not aim to abolish this [EPO] practice nor to extend it. [..] The proposal the Commission seeks to harmonise and to clarify; but *nothing will become patentable which is not already patentable now.*"

So if you understand the last part, it means that the objective of the Commission is going to validate patents which are currently granted by the EPO? Do you agree that the goal of DG Markt is only to validate the EPO practice?

After the Council meeting of 18th May 2004, some people discovered that the Greek Patent Office has in fact written the position of Greece regarding this directive. Same clues appears in France, where the INPI (Institut National de la Propriete Intellectuelle) have inspired the Press Release of the French delegation. Are you aware that Patent Offices are in facts really in position to dictate their views to people who decides in some countries?

If this directive project fails, there will be pressure to modify the EPC. Does the EPO wants to remove the term "as such" so as so clarify that ideas of software are not patentable? Or does the EPO wants to remove the whole article? (Choose one of the 2 options)

Were you aware that Mr Howard, responsible for the Directive at DG Internal Markt, was working for the UKPTO before? Do you think it is normal that Patent Lawyers writes Patent law proposal? Do you think IP lawyers have an interest in seeing the field of patentability extended to software?

Trouvez-vous equitable d'attribuer un poids egal a chaque membre de l'EPC lors de la prise de decisions dans le Conseil d'Administration de l'EPO, notamment pour modifier la Convention EPC?

Trouvez-vous normal de voir assis a la table des negotiations des representants des Offices de Brevets qui ont un interet personnel a voire le champs de la brevetabilite etendu aux logiciels? (verify)

Trouvez-vous normal que ce processus de decision de modifier l'EPC soit fait en dehors de tout controle democratique? (Quote Bolkestein sep 2003: "And if I may be blunt, President, the process of renegotiation of the European Patent Convention would not require any contribution from this parliament. [...] And I think it is clear which route would give European citizens a greater say through this parliament in patent legislation in an area which is so crucial to our economy.")

Could the EPO please give examples of actual patents that would be disallowed by the Parliament's version of the software patent directive, that the EPO consider would be detrimental, and explain what about those patents that really should need patent protection?

Could the EPO please explain how they know that software patents really create greater benefit than harm to society as a whole. What proof do you have for this, in the face of various studies showing the opposite? <Insert references here> Or if there is no proof that software patents provide more benefit than harm to society, why then should we still implement them?

Technical is Technical. I think everybody agrees with that. Why does the EPO doesn't want to provide a definition of technical (dixit EPO representative at EIF meeting in november)?