[Upd-discuss] CPTech Comments at EU Patent Hearing Yesterday (July 12)

Thu, 13 Jul 2006 14:52:10 -0400

-------- Original Message --------
Subject: [Ecommerce] CPtech's intervention at EU Patent Hearing 
12th July
Date: Thu, 13 Jul 2006 06:24:58 -0400 (EDT)
From: "Michelle Childs" <michelle.childs@cptech.org>
To: ip-health@lists.essential.org,
ecommerce@lists.essential.org,a2k@lists.essential.org

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 ethical 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’s 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.

--
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

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