Validity of The Consultation Procedure


The questionnaire describes the Community Patent as a "priority" for the EU. It discusses a subject that is at the forefront of international debate about how far intellectual property rights are actually needed in order to stimulate science, the arts, and the economy.

However, for such an important proposal as the Community Patent, the questionnaire, and the process behind it, has serious failings that we must highlight.

Inaccessibility to the General Public

The questionnaire, and supporting documentation, are not accessible to a general public, not even to the proported audience of businesses that are affected by patents:

  1. The questionnaire was initially only provided in three languages (now five), instead of the official languages of the twenty-five current member states plus Bulgaria and Romania.
  2. There is no supporting documentation except the texts of draft treaties and previous resolution, material that is unreadable by the general public.
  3. The supporting documentation (the official documents) are not provided in all the official languages of the twenty-five current member states plus Bulgaria and Romania.

This inaccessibility creates real barriers to businesses operating outside the zones of the supported languages and which should be replying to the questionnaire.

We would have liked to see:

  1. A translation of the questionnaire into every language of the EU so that all affected parties had a fair chance to respond.
  2. Clear explanatory documents, approved by an independent expert committee, on the pros and cons of the current patent system that the Community Patent seeks to redress; on the EPLA (which is undocumented except for the treaty text); and on the 2000 Community Patent proposal.

Opaqueness of the Process

The consultation procedure lacks transparency, and it is unclear why a small-to-medium enterprise should respond, especially given the lack of guarantees that the significant effort required to respond would be worthwhile:

  1. There is no explanation of how the collected information will be used and made available to the public. In previous consultation procedures, we have seen large numbers of responses discarded as being "not representative".
  2. There is no explanation of the procedure itself.

This opaqueness severely damages the credibility of the consultation procedure, and damages the credibility of any legislation that would be produced as a result of it.

We would have liked to see:

  1. A clear statement about the way the collected information will be processed and used, especially with respect to the relative weight given to small, medium, and large businesses that respond.
  2. A clear explanation of the consultation procedure, and what steps are taken to ensure that it is representative and fair.

Lack of Due Process

The consultation procedure lacks due process, and show signs of being prepared in order to justify upcoming legislation, rather than being an honest solicitation of public opinion:

  1. The timescale (ten weeks) is fairly short.
  2. The short timescale is compounded by the inaccessibility of the process. A firm operating outside the UK, France, or Germany, and lacking native and expert skills in the relevant areas, would have to hire translators and lawyers to analyse the questionnaire and the supporting documentation. This is not feasible within such a short timescale.
  3. There has been no effort to educate the target audience of the consultation on the substance: no information campaigns wider than a simple press release, no accessible an well documented websites, or supporting materials.

The lack of due process leads to severe doubts as to purpose of the consultation procedure.

We would have liked to see:

  1. A campaign to inform the broader public about the current functioning of the European patent system and the reasoning behind the proposal for a Community Patent. This campaign should be run in all 27 states;
  2. Public debates organised in at least one, and preferably several of the members states, to actively solicit views and feedback on the proposal;
  3. A properly written and translated introduction to the EPLA, so that we do not need to attempt to read the draft treaty, a technical document that is not available in all the languages of the Union.

Biased Point-of-view

The questionnaire exhibits a clear bias in favour of extended patent holder rights:

  1. There are many references to the need to make it easier for patent holders to assert their rights, while there is no mention of the need to protect industries from the effects of patent inflation;
  2. The criteria of subject matter has been dropped from the list of main patentability criteria (section 4, point 1), which implies that the authors accept EPO TBA case law, and thus accept the validity of software and business process patents;
  3. The pertinent issues of software patentability, EPO accountability, and separation of powers in the patent system are completely absent from the questionnaire, though these problems are probably the most significant ones in the patent system, and the ones that any new legislation should address.

The biased point-of-view leads the reader to suspect that the document was largely drafted with EPO assistance, and is not designed to solicit debate on the real issues, but rather get rubber-stamp approval for a directive that would endorse EPO TBA case law, and would worsen, not correct, the current imbalances of power and institutional interest in the patent system.

We would have liked to see:

  1. Independent studies to decide on the real problems with the current patent system, before proposing some assumed problems and a set of solutions to these;
  2. A much better appreciation of the risks of a bad patent system, and of bad patents, rather than a simplistic recapitulation of the dogma of the need to protect the rights of patent holders, with no questioning of how and why those rights were granted.

Lack of Independent Oversight

The consultation procedure is conducted with no independent oversight:

  1. No independent or democratically-elected body is involved in the analysis of the answers to the consultation, nor the drafting of any consequent legislation.
  2. There is evidence that special interests were aware of, or even involved in the consultation procedure, long before it became public (from the prepared reactions by several large software firms).

The lack of independent oversight brings the entire consultation procedure into severe disrepute.

We would have liked to see:

  1. A committee of independent and representative experts, coming from the legal, and business domain, and whose task it would be to draft the questionnaire, prepare explanatory texts, organise information campaigns and the public debate, collect answers, and assemble these into a set of concrete recommendations;
  2. The exclusion of the EPO, professional lobbyists, and politicians from this committee.

Conclusions

The major failings in this procedure mean that civil society must choose to either ignore the procedure, question it, or participate and hope to be taken into account.

The FFII has decided that it will question the validity of the procedure, based on the serious lack of accessibility, which means that a majority of EU businesses are completely excluded from answering.

However, we also recommend participation, for those businesses that are able to do so, since this will demonstrate to what extent businesses in the "wrong countries" are affected.

This document provides analysis, comment, and typical answers that we have helped a number of businesses to develop. You may find this information useful in phrasing your own answers.

Next: Background Information


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