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Archive for May, 2010

Got the following invitation today, Correa is an excellent expert. Generally the seed patent groups are a bit detached from deep knowledge about the patent system and thus easily dismissed by institutional players. But they generate a lot of public buzz with their popular seed patent cases.

Public Conference
PATENTS ON SEEDS : THE TURNING POINT?
Munich, Germany, July 19th 2010; 10.15 am to 3.15 pm
 
In the past decade, an increasing number of patents on plants and animals have been granted, especially in industrialised countries. The negative impacts of these patents on farmers, on breeders and on innovation have became more and more evident during the last years, as has the patents’ contribution to market concentration. There is a growing rejection of these patents by NGOs, farmers’ organizations, breeders and even governments. The conference “Patents on Seeds – The turning point?” shows current trends, highlights the negative impacts of the current patent system. Conference participants will discuss what the necessary changes are and what the possibilities are to effect such changes. .

Languages/Translation: English, French, German, Spanish

Venue: Kolpinghaus München Zentral, Adolf-Kolping-Strasse 1, 80336 München; 10 minutes walking distance from the central train station. See http://www.tagungen-muenchen.de/lageplan/ For more information about accommodation in Munich: http://www.muenchen.de/Tourismus/6942/index.html

Registration: Online registration at www.evb.ch/en/patentsconference. Please register before July 12th.

Registration Fee: 25 Euro, including a lunch snack. To be paid on arrival.

Agenda:

10:15 Welcome
10:30 Carlos Correa (University of Buenos Aires, Argentina); worldwide trends on patents on seeds
11:10 Guy Kastler (Via Campesina, France); The impact of patents and plant variety protection on farmers
11:40 Niels Louwaars (Wageningen University, The Netherlands):); “The impact of patents on breeders and innovation and policy options to solve the problems.”
12:10 Christoph Then, Ruth Tippe (No patents on Seeds, Kein Patent, Germany); The Broccoli Case – and why the upcoming decision of the enlarged board of appeal is important.
12:40 lunch
13:30 Wilhelmina Pelegrina (Searice, Phlippines); Participatory plant breeding – Alternatives for innovation
14:00 Panel with all Speakers: Needs and strategies to change the current patent system
15:00 Summary and Goodbye
15:15 End of the Conference

For any questions regarding the conference please contact: nopatentsonseeds@gmail.com
Organisers: Greenpeace, Kein Patent auf Leben!, Misereor, EvB, Swissaid, Utviklingsfondet

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Recently I stumbled upon a footnote in an old IDABC presentation, then had a look at the Commission registers with the reference and found a document from the Commission that was not made public yet.

C(2006)7108/1 22/12/2006 Enterprise and Industry Draft Commission Decision concerning the use of an open source software licence related to sofware developed under the IDA or IDABC programmes

A final version of the decision is not found in the register. In Europe you can file a request for public document access under the  regulation EC/1049/2001 and usually get what you ask for. IDABC is now superceded by a new EU programme for interoperability, ISA. Apparently the Commission decision was later updated when the 1.1 version of the European Union Public License was approved. The EUPL is a wise choice for software from the public sector and enterprises as it is the legally best reviewed license for European market jurisdictions, available in all EU languages, it does not contain a political agenda and is compatible to most common licenses such as the GPL.

Any further questions?

  • Was C(2006) 7108 ever formally adopted or “top killed”? Does “The European Commission approved the EUPL v.1.0 on 9 January 2007” refer to C(2006) 7108?
    It seems the document was adopted.
  • Why is a final decision not found in the register?
    Because the Commission decided so on purpose! Very fishy.

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Interesting blog post from competing developers.

…I was able to acquire access to the VP8 spec, software, and source a good few days before the official release and so was able to perform a detailed technical analysis in time for the official release.

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The spin machine of the European Patent Office in Munich in full motion. Its Enlarged Board of Appeal declared the referred questions of EPO-President Alison Brimelow inadmissible. A court would stop here but the EBoA is no Court but just an administrative appeals chamber and not bound by judicial standards, so they also discuss the substance. Whatever Rorschach interpretation you may get from the actual 56 pages(!) document, it is not what Rainer Osterwalder made up, contradiction ahead:

PRESS RELEASE

Enlarged Board of Appeal confirms EPO approach to computer programs

Munich, 12 May 2010 — Today the Enlarged Board of Appeal of the EPO handed down its opinion on referral G 3/08, taking the opportunity to set out and confirm the approach of the EPO regarding the patentability of computer programs under the European Patent Convention (EPC).

The opinion relates to four questions referred to the Enlarged Board in October 2008 by the President of the EPO concerning points of law of fundamental importance for the Office’s patenting practice in this field.

The Enlarged Board analysed in detail the development of relevant case law, and found that there was a divergence between two decisions of Technical Boards of Appeal. However, recognising that the “case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified”, the Enlarged Board found that this constituted a legitimate development rather than a conflict of case law.

In the absence of conflicting Board of Appeal decisions, the Enlarged Board concluded that the legal requirements for a referral were not met. Nevertheless, the Board affirmed the right of the President of  the EPO to “make full use of the discretion granted by Article 112(1)(b) EPC” in making a referral, and provided further guidance on how these requirements for such a referral should be interpreted.

For more information, please contact:
Rainer Osterwalder
Press spokesman
+49(0) 89 2399-1820
+49(0) 163 8399527
press@epo.org
http://www.epo.org/press

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Do you spot what Philip Martin from Marks&Clerk got wrong:

In its decision, the Enlarged Board confirmed the acceptability of the President of the EPO to “make full use of the discretion” given to her by the European Patent Convention, but found that there was insufficient divergence to make her referral admissible. As such, no substantive decision was given, …

Philip Martin, Partner at Marks & Clerk LLP, comments: “The decision by the Enlarged Board of Appeal is a very significant move, particularly for software makers who have struggled with the historic divergence and stricter treatment… By confirming the EPO’s existing approach, the Enlarged Board of Appeal has given industry far greater certainty as to the state of the law at the EPO, which will hopefully bring considerably more clarity and consistency to the patentability of computer implemented inventions across Europe and its various national patent offices. It has taken the EPO some time to reach its current practice, and it is to be welcomed that this practice has now been confirmed”.

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A quote which sums my approach up:

Though social scientists care what people think it’s also important to observe what people do, especially if what they think they do turns out to be different from what they actually do.

quoted from here.

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Mayday! (doom mongering)

It is may. Mayday for democracy and internet freedoms. I just stumbled upon a weird document. I have no idea where the released document originates from, if its an authentic governmental negotiations document release, no reason to dispute that, have a look, simply outrageous. According to the URI it was put online only this month by Techrights.  Recently I often mentioned the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral IPR agreement negotiated by some industrialized nations.  The ACTA drafts are a harmless Nagasaki-style menace compared to the H-Bomb-style proposal, a EU-India ipr agreement draft document. Appears to be part of a “dooms day machina” for democracy.

EU-India and the ACTA wolf

To me the document lets you view an evil wolf behind the ACTA, less window dressing, less constraints, focus on substantive law, not just on enforcement, what EU trade administration really had in mind before ACTA was publicly exposed. ACTA is dramatized by NGOs into an attack on the internet. Others criticise a lack of transparency. ACTA deserves better public scrutiny. It is not at all an internet agreement, it affects e.g. access to pharmaceuticals for developing nations.  With so much public awareness cast on ACTA an institutional aspect is hardly understood: The Anti-Counterfeiting Trade Agreement (ACTA)  is parallelized by bilateral trade talks with so called “problem countries”, among them India with its strong generic pharma industries, but also Korea and others. The bilateral agreements are negotiated by virtually the same few persons responsible for ACTA. EU-India is bilateral, two negotiating parties: EU (trade department) and India (trade department). It is far easier to negotiate bilateral agreements than plurilateral agreements, and certain dangers stem from that.

Backroom deals for billions of people

For European citizens the domestic effects of a “bilateral agreement” are exactly the same as of a plurilateral or multilateral one.[*]. Trade negotiators negotiate, legislators are asked to rubber stamp [+]. Provided the measures don’t get rubberstamped via ACTA (because parliament spotted it) administration can try again with bilaterals as EU-Korea, EU-India, EU-China, EU-Switzerland, EU-Bahamas, EU-Fiji, EU-Tschingbimbistan. While ACTA receives a lot of attention now (“light” which puts an end to the vampires, as J. Zimmermann of Quadrature coined their advocacy method), EU-India does not attract much debate and attention. An agreement which affects the legislative environment for billions of people, with no turning back.

With teeth

For EU anti-internet backdoor laws you don’t need ACTA, EU-India is sufficient to get criminal sanctions (Art 34), ISP liability (Art 35) and border measures (Art. 36), DRM protection and lots more. Of course all this is not in the existing EU legislation (“acquis”) . As an oddity the Techright document also refers to the idiosyncratic EU database copyright, an EU legislative failure as the Commission admitted in its policy review. The proposal exports these rights to India, too.

When Parliament insisted on internet freedoms for ACTA and rejected the three strikes proposals, the Commission pretended no one’s ever proposed that, the Commission publicly attacked those who mislead made the representatives aware of it. What we find in the EU-India document is an impression of ACTA as it was meant to be.

No one depends on ACTA

When the interested public and Parliament fails to spot undesirable measures in ACTA (cast light on it) we’ll get it anyway, sneaked through a bilateral route, because Commission trade specialists want it so. Domestic effects of institutional activism and forum shopping. The process demonstrates us how trade policy severely undermines parliamentarian democracy when trade administration steps into merely regulatory matters, legislation not trade. I hate to admit that but maybe the globalisation critics were right with their fierce criticism of the EU- “Global Europe” strategy spirit.

More EU-India

As I wrote above, I cannot confirm if the document was authentic but I found some background documents:

“On 28th June 2007, the EU and India began negotiations on a broad-based bilateral trade and investment agreement in Brussels, Belgium.”

  • Commissioner De Gucht speech 4 Jan 2010: “We must complement the multilateral system by strengthening key bilateral and regional relationships. This is because bilateral agreements can go further and faster in promoting openness and integration, by tackling issues which are not ready for multilateral discussion and by preparing the ground for the next round of multilateral negotiations. Many key issues, including investment, public procurement, competition, intellectual property, …, can be addressed in such agreements. This would mean concluding Free Trade Agreements or similar types of agreements with amongst others India, ASEAN countries, Ukraine, Canada, Euromed, but also Mercosur.”
  • Commissioner De Gucht about the agreement, Indian television, mentions the need to address “non-trade issues”. In his mind the term comprises issues like “Climate Chance” and “Human Rights” [x] but IPR aspects in the TechRights document are also not trade-related but legislative.
  • Aid agencies on EU-India: Aids, not internet, EU-India may hinder access to essential medicines: “In recent years, India has become “the pharmacy of the developing world”. Ninety-two percent of people living with HIV on treatment in low- and middle-income countries currently use generic antiretrovirals (ART), mostly manufactured in India.”

[+] Commissioner De Gucht in Frankfurter Allgemeine stresses that Parliament’s role is just approval and assumes institutional legitimacy for the Commission like in a nation state: “In einer Demokratie muss das Parlament bei der Handelspolitik mitreden. Auf der anderen Seite muss klar sein, dass nicht das Parlament die Verhandlungen mit unseren Handelspartnern führt, sondern die Kommission. Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten[!] so.”

[x] A classic Red Herring power technique, in order to avoid procedural criticism, that a trade process relates to non-trade issues, they shift the debate to other non-trade policy issues which are expected to be backed by potential opponents of the agreement.

[*] Bilaterals are a dangerous “policy laundry” road for our nascent EU parliamentarian democracy.

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