Klaus-Heiner Lehne: software patent legislator and lobbying consultant

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Klaus-Heiner Lehne is a lawyer from Germany and Member of the European Parliament (MEP), elected with the Christian Democrats (CDU) which is part of the European People's Party (EPP). Lehne has been energetically pushing for unlimited patentability of software and has an active role as the coordinator of the EPP's parliamentary group in the European Parliament's Legal Affairs Committee (JURI).

Already being an MEP, Lehne joined the law firm Taylor Wessing in 2003 as a partner and became the head of the "regulatory affairs" department, whose job is to advise corporate customers about future directions of EU legislation. In other words, besides his active and public function as MEP, he is hired by corporate interests.

Another leading member of his department is Andreas Haak, who seems to have retained his accreditation as Lehne's assistant for a while even after assuming the new post in the office with Lehne.

The bulk of Taylor Wessing's business appears to be in patent litigation for large companies. Taylor Wessing has special business relations with patent lobby organisations, offering their members reductions in fees. Parts of Lehne's speeches and amendments come directly from Siemens and UNICE. Siemens' lobbyists are well-known guests in Lehne's office while representatives of SME in Lehne's home region have been complaining about inability to receive any appointments. Lehne has for a long time been responsible for transparency rules in the European Parliament.

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During the EPP hearing on June, 2nd, 2005, Lehne gave the final speech, being the EPP coodinator in JURI. He claimed that SMEs from his Düsseldorf constituency needed software patents and felt not represented by UEAPME. However, FFII knows of several SMEs from that region which are against software patents and tried repeatedly to meet Lehne. He rejected all requests while having several meetings with representatives of Siemens.

Düsseldorf is Germany's (and therefore Europe's) main location for patent litigation. The courts are popular in circles of patent owners due to their relative efficiency in patent enforcement. One beneficiary of this is the law firm Taylor & Wessing. In their Düsseldorf and Brussels agency, Lehne is partner and head of the "Regulatory Affairs" division (strategic consultancy for clients who want to know details about future directions of legislation -- presumably these clients want to know such details in order to take influence).

Taylor Wessing offers a 10% discount on their services for members of BVDW (= DMMV + VSI). The BVDW acts in Brussels as one of Microsoft's main lobbyists. The German Multimedia Association (DMMV) keeps the interest of its members by, among other things, price reductions such as that of Taylor Wessing, while he lobbies for positions that have nothing to do with the wishes of DMMV's members and instead regularly align themselves with current Microsoft campaigns.

Lobbying of Taylor Wessing

Taylow Wessing attends large companies in patent business and offers further services specially tailored for those customers. Among them is "strategic consultancy" about Brussel's legislation. This "Regulatory Affairs" division is headed by Lehne. The guaranteed confidentiality protection for talks between lawyer and client makes it rather simple to cloud mix-ups between public and private interest.

In a document from 2005 (local copy), Taylor Wessing characterises itself as a company which has its main focus on patent litigation for large companies:

It might be interesting that Taylor & Wessing talks directly about the "protection of software" when it comes to the EU directive, something that, according to Lehne, shouldn't become patentable at all.

The department of "Regulatory Affairs" assists lobby activities aiming at European institutions. This department was founded on October 1st, 2003. It was staffed with Lehne and his "scientific advisor" Andreas Haak. Wolgang Rehman, the German managing partner of Taylor-Wessing, describes http://de.taylorwessing.com/de/n_aktuell_det.asp?UID=49 the tasks of RA as:

It is our task to install an early-warning systen for our clients that allows for strategic advice in the preposition of legislative acts. In our experience, clients have a great interest in learning about possible impacts of legislation as early as possible

See the german original and a local copy.

Further down in this document we find:

|In close cooperation with groups within Taylor-Wessing that are specialised on specific market sectors, regulatory affairs will inform anticipatory about regulation questions and show possible activities to their clients.|

What Taylor-Wessing sees as "possible activities" is explained in a brochure as:

|... businesses need not and should not play an entirely passive role. Regulatory impact assessments of proposed EU law are currently relatively unsophisticated, largely due to a lack of understanding of business realities on the part of the EU legislators. Against this, legislators are generally willing to listen to the views of those most affected by their proposals, provided that they are offered constructively and appropriately. In many cases, the EU institutions rely on the responses to formal consultations on proposed legislation.|

Instead of simple observation we here see targeted influencing of legislative processes by groups of interest. Especially mentioned are "formal consultations" - hearings within EU institutions, organised by commissions and political parties. Taylor-Wessing also "helps" in convincing institutions of clients positions:

|Effective representation of the views businesses therefore requires not only thorough understanding of the way which the institutions operate, but also a feel for the arguments that are likely to influence them most effectively and how, when and where to present them.|

The fact that Taylor-Wessing offers close relations to institutions of the EU is not surpsrising, seeing the fact that Partners of Taylor-Wessing have been or still are working in these institutions:

|We maintain close contacts with the EU and national institutions, enabling us to provide an early warning of significant legislative proposals and other important measures and developments. We can help businesses not only to adapt to change, but also to minimise its effect. We advise on how to put a halt to ill thought-out proposals and over-burdensome regulation. We provide focused, commercial and cost-effective advice that can make a significant difference to the bottom line.|

Self-description of their "services":

|Effective representation of interests We have considerable experience of coordinating successful campaigns to influence the regulatory process (...) - Unrivalled contacts: Members of our team have first-hand experience of the legislative process. Taylor Wessing has historically had strong links with the field of politics, in France, the UK and Germany. Members of the team have worked in government departments, regulators and other institutions.| Mr. Lehne can certainly be seen as a part of this

Some references that show how Taylor Wessing was able to "help" their clients:

|Advising a German manufacturing company on the impact of the proposed EU Takeover Directive - Initially in the context of a dispute concerning an alleged abuse of dominance, helping a client to promote amendments to the current legislation, which resulted in the adoption by the French Parliament of a new legislative proposal|

Andreas Haak: Contact person for "Regulatory Affairs" and assistant to Lehne

According to the Regulary Affairs brochure, the contact person for the whole division, which comprises 8 employees, is Andreas Haak (see last page):

|For further information, please contact: Andreas Haak in Brussels or Düsseldorf, any of the partners named in this brochure, or any of the partners with whom you usually deal.|

Although Lehne is member of this division according to a press release, he is, in contrast to Haak, who joined the law firm at the same time, not listed in the brochure.

Andreas Haak, called "scientific counsel" of Lehne in the press release, was until July 2005 listed among the European Parliamant's accredited assistants. Accordingly, Haak would have had privileged access to EU institutions and to internal details of various legislative processes. This issue was raised in July 2005, and soon thereafter the entry of Haak in the public database was deleted. According to oral sources in the EP, this was however an error. They say that Haak was no longer an assistant after the Parliamentary elections of June 2004. This explanation is corroborated by the fact that Haak was not listed as assistant on the pages of the Christian Democaratic Union (CDU) in Northrhine-Westphalia: http://www.europa.nrw.de/index.php?mapid=260&textsize=].

From the Sep. 15th, 2003 press release by Taylor-Wessing about Lehne/Haak (here the version dated Oct 3rdhttp://www.taylorwessing.com/cgi-bin/pressrelease.cgi?num=604) we learn, that Haak must have worked as "scientific counsel to the coordinator in the Legal Affairs Committee of the European Parliament" before 2003:

|With him (Lehne) Andreas Max Haak strengthens the Regulatory Affairs division at Taylor Wessing. Mr. Haak is lawyer and since several years scientific counsel to the coordinator of the Legal Affairs Committee of the European Parliament. In addition he possesses experience as a counsel on European law.|

Lehne is not "coordinator of the Legal Affairs Committee" but coordinator of the EPP in this committee. Therefore, Haak was not subordinate to the institution "Coordinator..." but to Lehne personally. Another source mentions, that Andreas Max Haak talked on Sep, 26th 2003 as "scientific assistant of Mr Klaus-Heiner Lehne, MEP".

Taylor Wessing statements about the software patent directive

As known from Taylor Wessing's brochure of 2005, the software patent directive is one of the dossiers for which the Regulatory Affairs department of Taylor Wessing is offering its lobbying services in Brussels. Concerning the possible directions of this lobbying, some hints can be found in statements of Taylor Wessing employees.

Nigel Stoate, a patent attorney with London firm Taylor Wessing comments

|"Europe recognises that patenting software is important to keep up with the US, and the new directive achieves this. The new directive is intended to harmonise the position across all the member states."|

Stoate correctly presents the purposes and effects of the proposed directive. This is however contradicted by his partner Lehne in the plenary debate of July 5th: "Nobody, nobody, no political group -- for individuals I can not exclude it -- wants software patents. That is not at all the subject of discussion. The purpose of this directive was to not let the US development happen in Europe and to prevent it. That is the purpose. And the Common Position too fulfills this purpose."

Christopher Thornham of Taylor Wessing comments the discussion about the directive in patentees' journal IP Review (p. 18) as follows:

|"The Open Source movement has tried to derail the whole concept of the Directive. In my view their fears are unfounded. Patent protection won't stop people from innovating. In the US patents are easily available but that is not stopping innovation. In fact, it s the opposite. The proposed Directive -- as an attempt to harmonise patent law in Europe in the field of software -- is better than having a situation in which laws differ country by country."|

It's wrong to say that patent laws differ from country to country. The European Patent Convention was implemented in national legislation in 1978, and has been uniformly in force in all EU countries since then. Being a professional lawyer, Thornham surely knows this. Likewise, it is wrong to attribute the results of the 1st reading to an "open source movement".

Both fallacies are regular parts of the rhetoric repertoire of the patent lobby, including Lehne.

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