Draft Call to Action IV

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The European Parliament has resisted a multi-million euro misinformation and lobbying campaign by a group of multinational firms and rejected an attempt by the united governmental patent bureaucracies and the European Commission to impose patents on pure software and business methods on the EU member states. It is now up to national parliaments, national judges and citizens to organise further resistance against the European Patent Organisation and the multinational corporations standing behind it, so as to make sure their harmful and unlawful patent granting practise will not be followed in the jurisdictions of the member states. The undersigned describe the problems and propose measures to address them.

Problems

1. The European Patent Office:
   • Software patents: the EPO has in recent years granted 30-50,000 harmful patents on data processing rules against the letter and spirit of the written law and is persisting in this practise, based on case law created by the said office's Technical Boards of Appeal and followed by some, but not all, national courts.
   • Role: The EPO's role as a unified executive, legislative and judicial body violates all principles of the separation of powers that have been the standard since the 18th century.
   • Control: The supporters of the European Patent Office have tried several times to adapt the written law to reflect their new practise but each time failed due to lack of public support. Yet the harmful practise is continuing even without legislative support, and the EPO is promoting it more aggressively than ever.
2. Legislation:
   • The EP's Role: The European Parliament has at several occasions proposed clarifications of patent law which would, if enacted, have effectively obliged the European Patent Office to exclude data processing rules from patentability, as intended by the law which is currently in force. However these proposals of Europe's only democratically elected legislature have been frustrated by unreasoned resistance from the Commission and the Council.
   • Innovation Policy: There is a lack of coordination between patent and innovation policy, and conversely the mistake of equating the two is often made. However, innovation policy (considered vital but problematic in the Lisbon Strategy) encompasses much more, such as competition control and even more fundamentally, the creative management of creative potential. This frequently involves phenomena not yet understood by economists, such as creative commons, open source, etc. Blind extensions of rights and enforcement means, even in cases where no one at all in the field wants it (e.g. criminal sanctions for patent infringements) happen all too often.
   • The Community Patent: The Community out-sources the granting of Community patents, giving an unaccountable non-Community organisation, the EPO, carte blanche. The EPO will be able to grant Community software patents. The Community Patent proposal as it stands makes the EPO's Board of Appeal the highest authority on the granting practice. The European Court of Justice will be the highest court in infringement / invalidity cases. Two separate legal systems are created, allowing different interpretations of the European Patent Convention. The Community patent comes with accession to the European Patent Convention, which will create a loophole: Community law can be made by an non-Community organisation, disregarding the Community's constituting treaties, bypassing the European Parliament. With its long retroactive liability, the Community patent makes legal extortion profitable.
3. The draft Constitutional Treaty:
   • The draft Constitutional Treaty's unqualified statement that "Intellectual property shall be protected" is unprecedented. It has already been abused extensively by the Commission (in its justification for the IPRED family of directives) and completely misses the point that such exclusion rights generally are merely a means to an end as opposed to a fundamental right in themselves.
   • The Treaty in itself, regardless of the final form and content, cannot bring more balance and democracy in the European Union's decision making process without substantive changes in the Commission and Council's behaviour and attitude.

Solutions

• Community Patent and EPO Governance: In order not to undermine the Constitution, to prevent Community law written by a non-Community organisation, the Community takes over the European Patent Organisation's legislative role. In order to prevent a Community software patent, the case law on software patents is excluded on accession to the European Patent Convention. A Community law on software patents is made before accession to the EPC. In order to prevent Community titles by a non-Community organisation, to prevent out-sourcing of patent policy, the European Patent Office is made a Community Innovation Agency. In order to prevent separate legal systems with its own interpretations of the European Patent Convention, the European Court of Justice is made the highest court on all patent cases, granting, infringement and invalidity of Community patents. In order to prevent making legal extortion profitable, there will be no retroactive liability. The EPO has to put the legislative powers wielded by its Administrative Council, which is controlled by patent bureaucrats, under direct democratic control (as also suggested Article III-176 of the draft Constitutional Treaty).
• Software Patents: The European Parliament in its second reading of the software patents rallied around 21 compromise amendments, which clarified the current law and formed a solid basis for further discussions. These discussions must be continued both at the European and at the national level in order to further refine them, in response to the deafening silence from the Commission, Council and EPO regarding these solutions to failures of the patent system to deal with new subject matter.
• Innovation Policy: Copyright has made the software field big, and remains (combined with trade secrets, licensing contracts, branding, first mover advantages, ...) the primary and preferred method of protection for software for all software creators. Potential benefits related to exclusion rights offered by software patents do not outweigh the threats posed by third-party patents, especially not for SMEs. They need to own and be able to sell what they write.
• Draft Constitutional Treaty: The Treaty should include proper provisions for amending and revision, so controversial provisions such as the aforementioned "Intellectual property shall be protected" can still be improved later should the Treaty be adopted. If the Treaty is to lead to a further democratisation of the Union and tighten the gap between the European institutions and the people, it must be accompanied by a substantive mentality change in the Commission and the Council:

  • Opinions of the European Economic and Social Committee, the European Data Protection Supervisor, the Committee of Regions, consultations, ordered studies and various other advisories must be honored instead of systematically ignored.

  • Answers to Parliamentary questions must actually address the points raised by MEPs instead of simply rehashing old and long refuted boilerplate statements ("The European Patent Office does not grant software patents and is doing fine", "Of course the European Commission knows better how to interprete the European Charter of Fundamental Rights than the European Court of Human Rights", ...)

  • The speed of decision making and bureaucratic tradition must not take precedence over democratic legitimacy and the quality of legislation, nor over the public interest in having insight in the Council decision making process.

Call to action

Therefore, the following signatories call on the following institutions to take action:

• European Commission
• European Parliament
• Ministers and Governements
• National Parliaments
  • To pass a resolution asking its governement to submit its policy positions on Patents (namely EPLA, Community Patent or other international patent policy) at least 6 months in advance before any meeting to a Parliamentary Committee, in order to define a position by the National Parliament.(see EP resolution on Transparency: "Considers that it is of the utmost importance for national parliaments to be able to hold their governments and ministers to account; is of the opinion that this cannot be done effectively if it is unclear how ministers have acted and voted in the Council;")
  • To pass a resolution supporting the inclusion of the European Parliament in the administration committee of the European Patent Office. If the Government or the Commission does not support the democratic control of the European Patent System, do not sign any agreement which does not support this condition.
  • To pass a resolution asking for the Council of 25 Ministers to make all meetings of the Working Group on Patents of the Council of the European Union fully accessible by the public, and not organised behind closed doors. The documents of the Council of the European Union related to Patent Policy should also be made public without any time delay.
• Companies
• Citizens