EU and USA negotiating mutual patent recognition

The EU may be considering harmonising patents with the US, according to information published last week. In its statement on the results of the Transatlantic Economic Council negotiations, the council made brief reference to the intellectual property rights issue. A single bullet point in the statement references a roadmap issued jointly by the European Commission and US Patent Office aimed at advancing "global patent harmonization". According to EU Commissioner for the Internal Market, Charlie McCreevy, the focus is on negotiations to find common ground in the different patent systems and on determining what commercial rights could be jointly recognised on that basis. He added that cooperation in this field had to be improved. Progress is expected by the end of the year.

Advertisement

US President George W. Bush, European Commission President José Manuel Barroso, and – then EU Council President – Angela Merkel created the Transatlantic Economic Council (TEC) in late April 2007 to remove trade barriers. Patents are peripheral to the work of the council, but it is telling that, according to European Patent Office President Alison Brimelow, the economic body is now calling for the rapid harmonisation of important patent systems and is even eyeing specific timelines. Brimelow recently called for increased co-operation between the major patent offices in Europe, the US and Japan, including common use of patent reviews. However, contrary to the TEC, she stopped short of suggesting global joint recognition of patents, due to obvious differences between patent systems.

Critics worry that, on the path to mutual recognition of commercial protection rights and a bilateral treaty to go along with it, software patents modelled on the US system may finally be legalised in the EU. Benjamin Henrion of the Foundation for a Free Information Infrastructure (FFII) fears that, "The US wants to compromise the higher standards of the European Patent Convention." The TEC agenda is dictated by the Transatlantic Economic Business Dialogue (TABD), in which not a single small or mid-sized European company is represented.

The FFII points to numerous failed attempts of the industry to expand the limits of material patent law in Europe to annul the prohibition on protection of software "as such". These attempts aimed to adopt the low US standards within the framework of the World Intellectual Property Organisation in negotiations over a Substantive Patent Law Treaty. The TEC is now being used as a new way to slip software patents in through the back door.

A draft (DOC file) of a proposed transatlantic patent treaty, specifies that granting commercial rights requires that a claimed invention in its entirety must not, at the time of the priority date, have been obvious to a person skilled in the art. This makes it possible to prevent the patented object alone, a software application for instance, being the object of a general patent review; it would always be considered in connection with the computer running it.

According to FFII President Alberto Barrionuevo, in the TEC talks the commission overstepped its bounds with respect to commercial rights. "The European Union has neither a Community patent, nor a common material patent law." The only exception is the Biotech Directive. For that reason Barrionuevo believes that, "Discussing a bilateral patent treaty with the United States is superfluous. It is the blind leading the blind." He thinks that if the US really wants to fix its patent practises, it should first enact its controversial planned patent reforms and become a signatory to the European Patent Convention. McCreevy's spokesperson stated that the treaty was not about software patents, "Something not approved here could not be recognised."

(Stefan Krempl)

(trk)