[ffii] McCreevy wants to legalise Software Patents via a US-EU patent treaty

FFII Press Centre media at ffii.org
Tue May 13 17:44:55 CEST 2008

PRESS RELEASE -- [ Europe / Economy / Innovation ]

McCreevy wants to legalise Software Patents via a US-EU patent treaty

Brussels, 13 May 2008 -- European Commissioner McCreevy is pushing for a
bilateral patent treaty with the United States. This Tuesday 13 May in
Brussels, White House and European representatives will try to adopt a
tight roadmap for the signature of a EU-US patent treaty by the end of
the year. Parts of the proposed treaty will contain provision on
software patents, and could legalise them on both sides of the Atlantic.

"TEC talks are the current push for software patents. The US want to
eliminate the higher standards of the European Patent Convention. The
bilateral agenda is dictated by multinationals gathered in the
Transatlantic Economic Business Dialogue (TABD). When you have a look
who is in the Executive Board of the TABD, you find not a single
European SME in there", says Benjamin Henrion, a Brussels based patent
policy specialist.

The Transatlantic Economic Council (TEC) which comprises EU and US high
level representatives put a substantive harmonisation of patent law on
its agenda. Substantive patent law covers what is patentable or not. The
attempt to impose the low US standards on Europe via the Substantive
Patent Law Treaty (SPLT) process utterly failed at the World
Intellectual Property Organisation. Also progress in the WIPO B+
subgroup (without development nations) could not be reached.

Now the TEC is used as a new forum to push forward with lowering
patentability standards through the back door. The TEC is a closed
process, and sits outside the WIPO multilateral treaty talks. Since WIPO
participants Brazil, India and China (the BRIC block) began to fight
EU-US proposals for ever-more aggressive patents, the EU and US have
begun their own bilateral talks.

The main difference is that the TEC is a trade process. The use of free
trade talks to change patent laws has precedence. In the GATT
negotiations the United States diverted a Free Trade process to
blackmail trade partners to accept the TRIPs treaty that limited
flexibilities of their national patent law.

In 2005, the EU Parliament did not want to make software patents
enforcable in Europe after massive opposition from citizens, small
European software businesses, parliamentarians of all sides, and civil
society. The United States and US stakeholders intervened without
success in internal matters of the EU in favour of software patents. In
the same year the Indian parliament resisted the US pressure to change
its patent laws. The US diplomacy insisted in India on alleged TRIPs
obligations to permit software patenting.

Commissioner McCreevy's home constituency, Ireland, is the main base in
Europe for large US software firms who repatriate most of their EU
profits as licenses and "patent royalties" without paying taxes in
Europe. In his former government office McCreevy build the Irish
tax-free harbour.

FFII President Alberto Barrionuevo adds: "The European Union does not
have a Community Patent, neither a substantive patent law in its acquis,
except the biotech directive. As long as there is no substantive patent
law in the EU, it is quite silly to discuss about a bilateral patent
treaty with the United States. Its like a blind showing the way for a
deaf. If the USA really wanted to fix their patent practice they should
first switch to first-to-file and join the European Patent Convention."

Rumors also circulate that a confidential and dedicated Working Group
inside the European Council of Ministers has been created to discuss
this proposed patent treaty. The agenda and terms are put forward by the
United States whose patent law does not meet European standards.

Background Information

Agenda Meeting objectives for 13 May [1]

  "Patent Law Harmonization : Agree on roadmap."

WhiteHouse: Framework for Advancing Transatlantic Economic Integration
Between the United States of America and the European Union:

  "Cooperate on improving the efficiency and the effectiveness of the
  patent system at the global level to promote innovation, employment,
  and competitiveness, and seek progress in the harmonisation of the
  different patent regimes;"

TABD: Transatlantic Business Recommendations for Action by Transatlantic
Economic Council:

  Patent Law Harmonization: The TEC work program needs to specify the
  step-by-step plan proposed for progress on convergence of US and EU
  patent regulation. We understand that the US put forward a roadmap
  proposal at the end of January, but it is not clear what, if any, are
  the agreed milestones for the roadmap going forward.


* [1] TEC Agenda Meeting objectives for 13 May

* WhiteHouse: Framework for Advancing Transatlantic Economic Integration
  Between the United States of America and the European Union

* European Commission: Transatlantic Economic Council

* TABD: Transatlantic Business Recommendations for Action by
  Transatlantic Economic Council

* Commission: Transatlantic Economic Council: objectives for Spring 2008
 (Issues to be Noted by the TEC: * Patent Law Harmonization: Agree on
* IP-watch: Group B+ Draft Patent Harmonisation Treaty Emerges

* IP-watch: Draft treaty text available (with a sensitive part marked as

* Permanent link to this press release


Benjamin Henrion
FFII Brussels
+32-2-414 84 03
bhenrion at ffii.org

About the FFII

The FFII is a not-for-profit association active in over fifty countries,
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benefit, based on copyright, free competition, and open standards. More
than 850 members, 3,500 companies and 100,000 supporters have entrusted
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