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

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. ۦ4 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).

ۦ1. (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 --------------------------------------------- ---------------

ۦ2. (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.

ۦ3. (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 --------------------------------

ۦ4. (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).

ۦ5. (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 -------

ۦ6. (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

ۦ1. 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 ----------

ۦ2. 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.

ۦ3. 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.

ۦ4. 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 . . . -------------------------------------------

ۦ5. 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.

ۦ6. 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.

ۦ7. 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 --------------------

ۦ8. 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 ----------

ۦ9. 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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