• Trilat051117En

Trilateral Summit in Munich 2005-11-17

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17th November 2005 -- Unlike the copyright system, the patent system requires complicated and expensive procedures that are difficult to internationalise. The world's biggest patent offices, those of the USA, Europe and Japan, nevertheless convened once more, under the name "Trilateral Project", in Munich this week in order to push forward developments toward a worldwide unified patent system. The three offices are in a unique position to do this, because they factually dominate patent legislation in their respective regions. In 2000, the Trilateral Project worked out texts for the failed EU software patent directive project, which were directly used by the European Commission. The work of the project also served as a legitimation for the aborted attempt to delete the exclusion of "programs for computers" from the European Patent Convention. In spite of these political failures, the European Patent Office is sticking to its practise more adamantly than ever. However, at today's user conference, some surprising critical notes on software patenting came from the US side. Below you find detailed reports, comments and background documentation.

Trilateral Offices urged to keep the public interest in mind -- FFII Comments

Hartmut Pilch summarises:

Today, the world's three large patent offices celebrated again the rising flood of prohibition regulations which they are producing. Meanwhile they are granting several hundred thousand of them each year in exchange for ever smaller innovative achievements. It becomes more and more questionable to what extent a system, which monopolises innovations by means of written claims, is still manageable (not to mention reasonable) in today's global and rapidly evolving economy. If,as we heard today, some highly developed countries intend to base their national strategy on "intellectual property", then they should seriously look for a suitable framework. The patent offices and their user community are busily optimizing a construction, which a national economy can no longer seriously want. Apparently, their interest is directed only towards covering the world ever more efficiently, systematically, and widely with broad monopolies, which necessarily go along with cumbersome and expensive procedures, no matter how often the reform parameters are adjusted, which are the main concern of the patent community on their conferences. While there even were some sceptical notes from the US-participants this time (especially towards software patents), the EPO and the self-declared representatives of European industry were only interested in more efficient and unified patent filing and granting. It was in 2000 that the Trilateral Project supplied the key wordings for the European Commission's directive "on the patentability of computer-implemented inventions", which would have legalized software patents in Europe. Currently, we witness the attempt to impose without explicit legislation these rules which the three offices had worked out five years ago.

Geza Giedke, a physicist and FFII activist in Munich who attended the conference, comments:

The heads of the American, European, and Japanese patent offices (which currently process more than 80% of world-wide patent filings) convened today for the Trilateral User Conference 2005 with industry representatives to discuss problems and reforms of the patent system.

The Trilateral Offices acknowledge the problems caused by the massive rise in patent filings, in particular the challenges to patent quality, and the huge cost associated with obtaining international patent protection.

However, the proposed remedies concern only harmonization of laws and procedures and operational streamlining. The fundamental problems of the system such as the enormous expansion of patent-protected monopolies to heretofore free and competitive areas of creativity are not addressed.

This is a consequence of the Offices' determination to continue catering to the interests of big industry and patent attorneys, at the expense of the public, which has to bear the burden of extensive patenting and the associated inefficiencies and monopoly profits, especially in the software industry.

It is clear that the patent system is in need of reform. FFII calls for a fast, narrow, and cheap protection system, in line with the potentials and needs of the information age.

It is doubtful, that the patent offices themselves have the necessary independence to embrace the needed reforms.

The surpassing need of knowledge-based societies for a free and competitive sphere of innovation has to be kept in mind and balanced with the interest of companies to maximize monopoly protection granted by patents. Patent examiners need to newly commit to their role as stewards of the creative commons, not as "suppliers" of "good value" to their "customers".

Reports from the Conference

• Trilateral Website: Meet Users

• Conference Program (pdf)

• Official Press Release of the Trilateral Offices

Conference Program

• source (pdf)

LW

The conference barely touched the subject of patentability. Only the represetative of the JPO indicated in his "roadmap towards the harmonisation of patent practice" that the harmonisation of patentability requirements might be a long term goal. A representative of the "user" community (M. Garner of AIPLA) even mentioned explicitly the computer and software industry as an area in which patents are more of an annoyance. Apart from this the big topics were "quality of patents", "unified document structure", "grace period in Europe", and "harmonisation of patents while taking national restrictions into account".

GG

To give my main impressions first: it was notable how "user-centric" the participants are thinking (or at least talking): where "user" essentially means "customer",i.e. patent attorneys, companies, and other patent offices. Neither the EPO-President nor the Japanese representative even mentioned the public or society, the USPTO-Director at least remarked on his constitutional Auftrag "to promote progress" Whether patents (or other IP protection) are appropriate was not questioned by anybody. In particular, it was never considered to react to the flood of patent applications (under which all three offices groan, having each a backlog of 100.000s of applications) by restricting patentable inventions (e.g. by excluding software and business methods, which represent a major part of the new applications).

Only the representative of the IPO (Intellectual Property Owner Association) made several clear statements that even those who never file a patent are participants in the system and their interests have to be kept in mind.

Now the chronolocigal report: The first speakers were the presidents of the three patent offices. Apart from some self-praise, they talked mainly about the problems such as the huge backlog and the long waiting periods before patents are granted and the high costs, which they attribute to the translation requirements. They intend to simplify the work associated with patent applications in different countries by partial re-use of applications and sharing of the examination work.

• A. Pompidou (EPO)
  • see above (self-praise, backlog, waiting periods, translation costs)
• J. Dudas (USPTO)
  • many new examiners have been/will be employed (1000 each year in 2004-2006)
  • new training methods
  • attemptto improve the quality of applications
  • "record growth" in patent filings in each of the last years was unflinchingly booked as sign of success
• M. Nakajima (JPO)
  • Japan has declared itself an "IP nation" in 2002 and in this context started several projects ("prosecution highway", "IP High Court", outsourcing of prior-art search)
  • to move towards a global patent system (GPS) the usual demands were re-iterated (faster, simpler, more efficient, while keeping quality up...)
  • moreover, a proposal ("new route proposal") for the more efficient filing and processing of international patent applications was made (which supposedly combines the advantages of the currently existing "PCT" and "Paris" routes)
• Four presentations by representatives of the user community followed:
  • the president of IPO, J. Hawley, pointed to some of the real problems of the patent system: the negative consequences of bad patents (e.g. in the hand of patent trolls), the high cost of patent litigation, the possible bias of patent examiners ("one may get the impression that it's easier to allow than to reject") and he argued for taking into account also the concerns of the public (i.e., those who may never file a patent), e.g., by facilitating the "post grant opposition" against patents. (He also pointed out the poor PR (for the patent community) that went along with bad patents and long waiting times).
  • The president of the patent attorney association AIPLA, M. Garner, discussed the patent reform considerations in the US (cf. e.g., recommendations of FTC and NAS,as well as a response by AIPLA). It seems that not all is well in the land of unlimited patent-opportunity and there are voices against exessive patenting: besides financial services he named, surprisingly, the software industry (and in particular large companies and the BSA) as industries in which patents are rather considered as an annoyance!
  • The representatives of European and Japanes industries (T. Sueur and N. Kuji) were mainly concerned with procedurall simplifications ("harmonization is a must", common court/legal procedure (European patent litigation agreement, EPLA), community patent, limit translation cost, unified "grace period", unified and simplified filing procedure)
• In the subsequent discussion, the main statements came from patent attorneys who wished for simplification and unification of the filing procedure and court system.

Issues

• EPO Trilateral Website B3B

  • 21 cross-partisan amendments (PDF as filed by the rapporteur Michel Rocard): Amendment 1 and several others refer critically to the wordings of the trilateral project

  • EPO Trilateral Website on the Examination of Business Methods -- key phrases from from this was directly used in the European Commission's directive

• EPO is administrator, judge, legislator and lobbyist in one, aggressively lobbies for software patents

  • see http://cii.european-patent-office.org/, linked from title page after defeat in EP

  • institutionalised lobbying in Brussels, directly by EPO
  • SACEPO (Standing Advisory Committee of EPO) consisting of powerful pro-patent stakeholders, who form the EPO's external lobbying network and therefore exert great influence on its policies
  • The Trilateral Project is also a part of these lobbying efforts.

• UNICE is partner in conducting user conference.

  • UNICE does aggressive pro-software-patent lobbying, is not faithfully representing Europe's industry.

  • Leader of UNICE patent workgroup Thierry Sueur who spoke at this conference was in 2002-5 one of the most committed, probably fulltime, pro-software-patent activists.

  • Other groups, such as FFII/Economic Majority are left out

• The Trilateral Project provided important text chunks for the software patent directive in May 2000. Software patents have for long been a favorite subject of "internationalisation" efforts in the Trilateral Projects and related projects. Under the cover of internationalisation, extension or codification of illegitimate extensions is pushed forward.

• Efforts to limit patent quality by a worldwide Substantive Patent Law Treaty are going on at WIPO.

• Why the patent system is unfit for internationalisation

  • Paul Geller 2003: International Patent Utopia? (originally published in the European Intellectual Property Review, 2003, 515, and then in French translation in Propriétés intellectuelles, 2004, 503, in German translation in GRUR Int., 2004, 271, and in Chinese translation in Intellectual Property Studies, 2004, no. 15, 78.) This paper treats the patent system as too bulky to internationalise as is and proposes alternative solutions for a transition to a new international system

  • FFII: Proposals for Reform of the Patent Examination System

  • FFII: Industrial Copyright -- Toward an Integrated System of "Intellectual/Industrial Property"

  • Eurolinux 2002: appeal for change of approach to Community Patent

  • FFII 2001: Substantive Patent Law Treaty Draft: Unlimited Patentability and Strict Limits on Patent Quality to be hardcoded into international law

  • FFII: Trilateral Project (old documentation)