[Ip-health] CPtech's intervention at EU Patent Hearing 12th July

[Michelle Childs]

I was a speaker at the hearing yesterday. My intervention is below.  There
was no real debate on broader issues, other than one other intervention
from CARE on ethicial issues. The day mostly focused on discussions about
the  Community Patent, the European Patent Litigation Agreement and the
London Protocol. I will do a fuller note shortly. As suspected most
speakers pushed for a quick ratification of the European Patent Litigation
Agreement and the London Protocol.  Of the larger companies that spoke
only Nokia was much more wary of the EPLA on costs and procedural grounds.
FFII and Florian Muller spoke out strongly against the EPLA ( see previous
posts for their interventions). The Common politicial position on the
Community patent was opposed by many as too costly and even supporters of
the Community Patent thought that it was unlikley that there would be
quick progress on it.

Unsurprisingly Commissioner McCreevy finished the day by saying that DG
Int Mrkt would work on the EPLA and the London Protocol ( though there are
some institutional issues that have to be overcome before they can do so).
He would  give one further push to finalise the Community Patent, but was
deciding on the best time for this. He also confirmed that following the
defeat of the 'software patent directive' he would not push for another
directive in this area during his term in office.



Cptech=92s Intervention at the EU Commissions Public Hearing on Future
Patent Policy 12 July 2006

Introduction

The Consumer Project on Technology  (Cptech)  thanks the Commission for
giving us the opportunity to  intervene in these proceedings. Our comments
draw on our fuller written response to the original questionnaire.

The primary aim of the Community patent is broadly to make patents cheaper
to obtain and easier to enforce. This is fine if and only if the current
patent system functions well. We do not believe that it does .

While there will remain a number of key questions about the mechanisms,
institutions and accountability, the push for a Community Patent will be
resisted by public interests groups unless the Commission deals with 4
prior issues:

1) Opening up discussions and decisions on patent policy to more
stakeholders and acknowledging other interests than rights holders. Many
of the initiatives taken by the Commission in this field are done in close
cooperation with major rights holders, making the proposals one sided. It
is often forgotten that citizens and consumers are key stakeholders in
discussions about the future of the   patent system.   A poorly
functioning patent system impedes not just innovation but also access.

Today is a good start.

2) There must be a clear agreed statement of the purpose and objectives of
policy in this area. The Commission has made a start but it almost
exclusively equates more protection with economic growth and innovation.
Patents are only one tool and should only be used if the benefits outweigh
the costs and are superior to alternative mechanisms.

3) The Community should acknowledge the limited role for patents in the
economy, and develop a better understanding of how to set appropriate
limits.    There is a need for a more econometric approach to patent
policy. We would like the policy to be developed on the basis of
independent studies on the real problems of the patent system.

Specifically the costs patents represent to society should be taken into
account. If patents were costless, they would not be controversial.   But
they do present costs to society, and in some cases, unacceptable costs.
These include excessive prices for certain patentable inventions (such as
Herceptin, the high priced and often rationed cancer drug, and second line
AIDS drugs in  newer EC Member States), restrictions on the supply or
inability to meet the demands of the market (such as Tamiflu), patent
thickets that make it difficult to adopt standards for new technologies in
the areas of computing and telecommunication devices, and many other
areas.


A good patent system recognizes and addresses the issues of costs and
benefits, by limiting the use of the patent system only to those areas
where the benefits outweigh the costs, and secondly, by limiting the
rights associated with a patent, in order to address well known problems.


CPTech believes there are several areas where the evidence suggests
patents should not be used.  These include: (1) business practices, , (2)
software,, (3) certain areas in medicines where the patent system is an
unneeded and unwelcome barrier to the use of innovations, such as
recommended doses of medicines or surgical procedures on humans, to
mention only a few areas.

The Commission should also look at developing new approaches to ensure
greater public benefits, whilst rewarding inventors. For example:
Remunerative versus exclusive rights.  Increasingly, experts are
considering more formally the benefits in certain areas of treating
patents as a right to remuneration, rather than a right to exclude.

4)  When the patent system is used, there must be a robust and effective
mechanism to address abuses, and the public interest in more liberal use
of the inventions. This does not just involve competition powers.  The
limitations and exceptions to rights must include public authority to
authorize both remunerative and non-remuneration non-voluntary uses of
inventions, and to place constructive obligations on patent owners.

Only if the Commission deals with these issues, via legislation where
necessary, can they then turn to implementing the policy objectives via
the Community Patent or other means.


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Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
+1.202.332.2670,Fax: +1.202.332.2673

Consumer Project on Technology in Geneva
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727