09.11.11

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Cablegate: Chancellor Merkel Organises Initiative Striving for “Increased Support for Cooperation Between U.S. and EU Patent Agencies”

Posted in America, Cablegate, Europe, Patents at 3:40 am by Dr. Roy Schestowitz

Cablegate

President and First Lady Obama with Chancellor Merkel

Summary: US perspective on the EU Patent, which is a prelude to a global patent, permitting far-reaching litigation even with software patents

EUROPE is under an assault to assimilate. We previously covered a related cable about the EU Patent, which helps create a bridge towards a Global Patent (more on that later). The effects would be devastating to everyone but monopolists and their patent lawyers.

The following 2006 Cablegate cable shows us how negotiations of the EU Patent has been going. ¶4 of the first cable says that “Notes from the Chancellery’s working group on IPR, provided by a BDI representative, focused on fighting piracy and cooperating more in the area of patents. On combating piracy, the working group recommends coordinating diplomatic efforts to apply political pressure on countries where piracy originates; improving cooperation among customs agencies; and taking political steps to implement a public consumer awareness campaign on pirated and counterfeit goods. For improving transatlantic cooperation on patents, the IPR working group recommends reaching agreement on the Substantive Patent Law Treaty (SPLT); recognizing common U.S.-EU standards; establishing an international court specializing in patent-law; and recognizing extended patent protection for substances that are subject to licensing procedures. The working group also recommended improving cooperation between the EU and U.S. patent offices through targeted programs like establishing exchanges of patent reports, creating a central database for formal data on patents, creating a worldwide standard patent application format, establishing higher quality standards for patent agencies and increased support for cooperation between U.S. and EU patent agencies. For patent applicants or users, the working group recommends prohibiting patents for business practices and formally prohibiting the practice of “patent trolling.” (Note: These recommendations have yet to be presented to the Chancellor for approval and will become part of a larger paper listing the working groups’ recommendations. End Note).”

Just “prohibiting the practice of patent trolling” is not going to address the main problem, which is monopolisation. Trolls are often just pawns in this battle and they mostly hurt the monopolists. Removing them only gives more incentive for multinationals to support this scheme. And as explained in the latter cable, “The EU has long had a goal of creating a single EU patent system under which, as in the United States, a patent could be applied for and granted through a single office, valid in all 27 member states.”

Their long term goal is a global patent subservient to the US system i.e. the USPTO with all of its software patents (hundreds of thousands of them, depending on criteria). We will show this separately in a cable about Japan. In the mean time, consider this:



VZCZCXRO6490
PP RUEHAG RUEHROV
DE RUEHRL #3518/01 3491551
ZNY CCCCC ZZH
P 151551Z DEC 06
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC PRIORITY 6435
INFO RUCNMEU/EU INTEREST PRIORITY
RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUCNFRG/FRG COLLECTIVE PRIORITY
RUEATRS/DEPT OF TREASURY WASHDC PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY
RUCPDOC/DEPT OF COMMERCE WASHDC PRIORITY

C O N F I D E N T I A L SECTION 01 OF 02 BERLIN 003518 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR EB/TPP, EUR/ERA, AND EUR/AGS 
USTR FOR DDWOSKIN, MMOWREY, SDONNELLY 
USDOC FOR KPARSONS 
 
E.O. 12958: DECL: 12/14/2016 
TAGS: ETRD [Foreign Trade], 
EFIN [Financial and Monetary Affairs], 
ECIN [Economic Integration and Cooperation], 
KIPR [Intellectual Property Rights], 
PREL [External Political Relations], GM [Germany] 
SUBJECT: GERMANY HONING TRANSATLANTIC ECONOMIC INITIATIVE 
 
REF: A. BERLIN 1747 
 
     B. BERLIN 3076 
 
Classified By: DCM John Koenig for reasons 1.4(b) and (d). 
 
¶1. (C) Summary: The Chancellor and other senior German 
officials continue to note Germany's economic agenda for its 
EU presidency includes promoting a more highly integrated 
transatlantic market place, while at the same time 
reiterating support for a successfully concluded Doha 
Development Agenda (DDA).  The exact parameters of the 
Chancellor's transatlantic economic initiative have continued 
to evolve over the past four months, moving from exploring 
the possibility of a transatlantic free trade agreement 
(TAFTA) (ref A) to the current formulation, which focuses 
mostly on overcoming or alleviating regulatory barriers. 
Merkel recently brought together leaders from business and 
government to help define this transatlantic initiative.  The 
reformulation resulted from German officials concluding a 
free trade agreement would not achieve much in terms of 
tariff reduction on non-agricultural products and would face 
the same challenges on agriculture market access the EU and 
U.S. are currently confronting in the DDA.  The Chancellery 
and other ministries have become more careful to stress that 
the primary objective remains a successful Doha Round, but 
that they also see the transatlantic market place initiative 
as something which could subsequently contribute to improved 
prosperity on both sides of the Atlantic.  German business 
and government officials say they plan to reach out to 
parliamentarians and Members of Congress to discuss the 
initiative.  End Summary. 
 
--------------------------------------------- --------------- 
Fleshing Out German Thoughts on Transatlantic Economic 
Cooperation 
--------------------------------------------- --------------- 
 
¶2. (SBU) Taking a further step to refine thinking on 
increasing trade between the U.S. and EU, representatives 
from German government and business met November 22 at the 
Chancellery to discuss how to integrate further the 
transatlantic market economy.  Starting from a premise that 
any type of a transatlantic free trade agreement is 
unrealistic, Chancellery and business representatives from 
the Federation of German Industries (BDI) have sought to find 
a more pragmatic way forward.  Both government and business 
representatives characterize their initiative as 
complementary to Doha, rather than an alternative or 
competing idea.  All continue to stress the importance of a 
successful DDA, even though many officials and business 
people privately offer serious misgivings over the prospects 
for the Round.  At the request of Chancellor Merkel, who has 
publicly stated her desire for a transatlantic economic 
element in Germany's EU presidency, business and government 
representatives created working groups in five key areas -- 
Energy, Finance, IPR, Standards, and Environment -- to flesh 
out concrete proposals.  Officials noted the first session 
was intended to develop a work program for each group, with 
the working groups presenting their recommendations on 
December 20. 
 
¶3. (SBU) According to Stefanie Conrad of the Chancellery's 
Foreign Trade and G-8 Office, Merkel wants the U.S. and EU to 
use what she sees as already excellent economic relations to 
move forward on more challenging economic issues, 
particularly on regulatory convergence and standards 
recognition in the five aforementioned areas.  The working 
groups would develop recommendations in terms of what they 
actually see as achievable.  Chancellery officials see only 
limited success in the previous efforts dealing with 
regulatory and standards issues and say Merkel is looking to 
give these efforts, and the overall transatlantic economic 
relationship, a higher-profile.  She wants political leaders 
involved in the issues rather than leaving them to experts 
for discussion.  German officials see engaging Congress as an 
important part of the equation.  They see the Federation of 
German Industry's annual US-German Roundtable, which brings 
U.S. Members of Congress to Germany to discuss transatlantic 
issues, as an opportunity for such engagement.  The 
roundtable is scheduled to take place in Hamburg in February 
2007. 
 
-------------------------------- 
 
BERLIN 00003518  002 OF 002 
 
 
A Glimpse Inside A Working Group 
-------------------------------- 
 
¶4. (C) Notes from the Chancellery's working group on IPR, 
provided by a BDI representative, focused on fighting piracy 
and cooperating more in the area of patents.  On combating 
piracy, the working group recommends coordinating diplomatic 
efforts to apply political pressure on countries where piracy 
originates; improving cooperation among customs agencies; and 
taking political steps to implement a public consumer 
awareness campaign on pirated and counterfeit goods.  For 
improving transatlantic cooperation on patents, the IPR 
working group recommends reaching agreement on the 
Substantive Patent Law Treaty (SPLT); recognizing common 
U.S.-EU standards; establishing an international court 
specializing in patent-law; and recognizing extended patent 
protection for substances that are subject to licensing 
procedures.  The working group also recommended improving 
cooperation between the EU and U.S. patent offices through 
targeted programs like establishing exchanges of patent 
reports, creating a central database for formal data on 
patents, creating a worldwide standard patent application 
format, establishing higher quality standards for patent 
agencies and increased support for cooperation between U.S. 
and EU patent agencies.  For patent applicants or users, the 
working group recommends prohibiting patents for business 
practices and formally prohibiting the practice of "patent 
trolling." (Note: These recommendations have yet to be 
presented to the Chancellor for approval and will become part 
of a larger paper listing the working groups' 
recommendations.  End Note). 
 
¶5. (SBU) The transatlantic economic initiative might also be 
a topic for the U.S.-EU Summit in April, according to 
Chancellery officials.  They note that Merkel is personally 
involved in the decision making on this subject and thus 
wants her stamp of approval on every aspect of this 
initiative.  As currently envisioned, points for discussion 
would be on how to structure a more formal arrangement for 
dealing with regulatory and standards issues, providing the 
initiative with a strong political grounding, and agreeing to 
clear goals that advance U.S. and German common interests 
related to this initiative. 
 
------- 
Comment 
------- 
 
¶6. (C) Germany's current efforts to produce a workable 
transatlantic market place initiative reflect a new approach 
to old themes.  The Chancellery's deliberate and evolving 
approach shows as well the importance Merkel has attached to 
producing a tangible objective for Germany's EU presidency 
and a possible deliverable for the U.S.-EU Summit.  Trade 
affected by regulations and standards is a growing share of 
the $3 trillion annual transatlantic ($160 billion 
U.S.-Germany) economic relationship; progress in this area 
could bring strong benefits to companies on both sides of the 
Atlantic.  The government's focus on standards and 
regulations is a sign that German business and government 
realize the transatlantic market place initiative cannot 
replace a successful outcome to Doha, which remains a Germany 
priority.  By engaging a variety of upper and mid-level 
business and government officials, German officials hope to 
produce an honest assessment with broad commitment as to what 
is achievable in terms of regulatory convergence and 
standards recognition.  Germany could use this assessment to 
persuade skeptics in Brussels and other EU member states that 
Germany's, and EU's, interests lie in accelerating the 
important process of regulatory convergence and standard 
recognition. 
TIMKEN JR

Several years later, US politicians were jubilant, saying that the “EU Makes Progress Towards, An EU-wide Patent System” (from Monday, the 14th of December, 2009). “The ministers also reached a deal on the establishment of an EU patent court system,” says the cable, “that would set up a single European appeals courts for patent infringement disputes. The agreement paves the way for further discussion, under Spanish and later Presidencies, towards a future patent system, but, given institutional and procedural hurdles, such a system is likely still one or more years away.” Here is the full cable:


VZCZCXRO5488
RR RUEHIK
DE RUEHBS #1673/01 3481522
ZNR UUUUU ZZH
R 141522Z DEC 09
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHSS/OECD POSTS COLLECTIVE

UNCLAS SECTION 01 OF 02 BRUSSELS 001673 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EUR/ERA KESSLER 
STATE FOR NSC KVIEN, DBELL 
STATE FOR EEB/TPP/IPE URBAN 
USDOC FOR ITA/MAC/EUR/OEU/DEFALCO 
USDOC FOR ITA/MAS/OCG/JFERMAN 
USDOC FOR ITA/MAS/OTEC/RBLANKENBAKER 
STATE PASS TO USTR 
 
E.O. 12958: N/A 
TAGS: KIPR [Intellectual Property Rights], 
EIND [Industry and Manufacturing], 
ETRD [Foreign Trade], SENV [Environmental Affairs], 
ECON [Economic Conditions], TPHY [Physical Sciences], 
TSPL [Science and Technology Policy], EUR, EUN [European Union] 
SUBJECT: EU MAKES PROGRESS TOWARDS, AN EU-WIDE PATENT SYSTEM 
 
BRUSSELS 00001673  001.2 OF 002 
 
 
¶1.  SUMMARY: At a Competitiveness Council meeting in Brussels 
December 4, EU industry ministers reached a political 
agreement on a process to move toward setting up a single EU 
patent to replace the multitude of national patents in force 
across 27 member states.  The ministers also reached a deal 
on the establishment of an EU patent court system that would 
set up a single European appeals courts for patent 
infringement disputes. The agreement paves the way for 
further discussion, under Spanish and later Presidencies, 
towards a future patent system, but, given institutional and 
procedural hurdles, such a system is likely still one or more 
years away.  END 
SUMMARY 
 
---------- 
BACKGROUND 
---------- 
 
¶2.  The EU has long had a goal of creating a single EU patent 
system under which, as in the United States, a patent could 
be applied for and granted through a single office, valid in 
all 27 member states.  Such a system would, according to 
Commission proponents, save firms at least 150 million 
Euros/year. 
 
¶3.  The EU has tried and failed to launch a common patent a 
number of times.  The first effort was the Community Patent 
Convention (CPC) signed in Luxembourg, December, 1975, by the 
nine EU states at the time, but never ratified.  An Agreement 
Related to Community Patents was signed by the EU 12, in 
Luxembourg in December, 1989, but also was never ratified by 
all signatories and thus never entered into force.  A 
political agreement on an approach to an EU patent was 
achieved in 2003, but foundered in 2004 when the 
Competitiveness Council failed to agree on details of the 
regulation. 
 
¶4.  Unable to reach agreement on a common patent, European 
member states agreed to the European Patent Convention, which 
created the European Patent Office (EPO).  This differs from 
a community-wide patent in that the EPC is a mutual 
recognition of nationally agreed patents and includes non-EU 
European states as signatories.  The arrangement does not, 
however, represent a centrally enforceable, European 
Union-wide patent. 
 
------------------------------------------- 
LATEST EFFORTS MAY BE MORE SUCCESSFUL . . . 
------------------------------------------- 
 
¶5.  At a December 4 Competitiveness Council meeting, the 
Swedish presidency was able to use new powers under the 
Lisbon Treaty to gain get member states to agree to the basic 
parameters of an approach to an EU common patent and 
supporting institutions.  The Commission will use this result 
to draw up specific legislative proposals.  Political 
agreement on the key elements of the proposal should 
facilitate adoption by the Council and European Parliament. 
 
¶6.  Article 118 of the Treaty on the Functioning of the 
European Union (TFEU), which consolidates the Treaty of the 
European Union with the Treaty of Lisbon, provides for the 
creation of European intellectual property rights (IPR) and 
the setting up of centralized, EU-wide arrangements for the 
authorization, coordination, and supervision of IPR in the 
EU.  It also calls for establishment of language arrangements 
for translations of European IPR, long an issue in the 
creation of an EU patent.  The entry into force of Lisbon on 
December 1, then, provided additional clear legal support for 
the patent. 
 
¶7.  The new political agreement on an Enhanced Patent System 
in Europe calls for the creation of a European and EU Patents 
Court (EEUPC), an EU patent (along with a separate regulation 
governing translation arrangements for the EU patent), an 
enhanced partnership with the EPO, and, as necessary, 
amendments to the EPC.  Under the agreement, the EEUPC would 
be made up of a Court of First Instance, a Court of Appeals, 
and a Registry.  The EEUPC would be financed by court fees 
and contributions from the EU member states at least during 
the transition period (five years after entry into force). 
The court would be composed of judges with patent litigation 
experience at the national level.  In addition, non-EU 
 
BRUSSELS 00001673  002.2 OF 002 
 
 
contracting members of the EPC could accede to the agreement 
as well. 
 
-------------------- 
. . . BUT NOT A LOCK 
-------------------- 
 
¶8.  But hurdles remain.  The European Union Court of Justice 
(EUCJ) is currently considering whether a new European patent 
court can be set up (presumably out of concern that such a 
system could be contrary to the EUCJ's role as guardians of 
the EU Treaties).  Member states are not united in their 
support for an EU-wide patent, with national patent offices 
set to lose patent renewal fees and some competence under the 
proposal.  And, while the Lisbon Treaty offers legal support 
for both a centralized approach to IPR and patent systems and 
translation arrangements, the mechanics of both are unclear. 
 
---------- 
CONCLUSION 
---------- 
 
¶9.  While the notion of an EU-wide patent has been around for 
some time, this agreement should come as welcome news for 
supporters of a strong internal market and a more robust EU 
patent regime.  With entry into force of a final regulation 
two or three presidencies away, there is time yet for a 
roadblock or two, with the EUCJ opinion the largest potential 
deal maker or breaker.  But political will for an agreement, 
combined with the legal support of Lisbon, make an EU-wide 
patent regime more likely than not in the near future. 
 
 
MURRAY 
.


As pointed out above (and as we covered in this site before), “The European Union Court of Justice (EUCJ) is currently considering whether a new European patent court can be set up (presumably out of concern that such a system could be contrary to the EUCJ’s role as guardians of the EU Treaties). Member states are not united in their support for an EU-wide patent, with national patent offices set to lose patent renewal fees and some competence under the proposal. And, while the Lisbon Treaty offers legal support for both a centralized approach to IPR and patent systems and translation arrangements, the mechanics of both are unclear. [...] the EUCJ opinion the largest potential deal maker or breaker. But political will for an agreement, combined with the legal support of Lisbon, make an EU-wide patent regime more likely than not in the near future.”

We really need to stop this in order to keep software patents away and hopefully squash them all together, in one fell swoop.

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