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

Conference Program

08 :30 - 09:30

Registration of participants, coffee

09:30 - 11:00

Presentations from the Trilateral Offices

09:30 - 09:50

"Europe and Trilateral Co-operation: Challenges and Achievements" Alain Pompidou, President, European Patent Office

09: 50 - 10:10

"Patent reform in the USA $(G!9(B The comprehensive approach to IP" Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of United States Patent and Trademark Office

10 :10 - 10:30

"An Intellectual Property-based Nation and New Route proposal" Makoto Nakajima, Commissioner, Japan Patent Office

10:30 - 11:00

Questions and answers

11:00 - 11:30

Coffee break

11:30 - 13:00

Presentations from industry in the trilateral regions

11:30 - 11:50

"The position of the European industry" Thierry Sueur, Vice-Chairman of UNICE "Patents" Working Group

11:50 - 12:10

JIPA: The position of the Japanese industry Naoto Kuji, President of JIPA

12:10 - 12:30

AIPLA, IPO: The position of the US industry Melvin C. Garner, President of AIPLA, J. Jeffrey Hawley, President of IPO

12:30 - 13:00

Questions and Answers

13:00

Conclusions and closure of the meeting

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.

Issues

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