Welcome to Eponia, Europe's New Rogue State?
from the above-the-law dept
It would be easy to assume that the European Patent Office (EPO) stands in the same relationship to the European Union as the USPTO does to the United States, but that's actually wide of the mark. The EPO is a very strange beast indeed, as its Wikipedia entry makes clear:
The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.
Far from being some boring government office like any other, the EPO is like a mini nation-state. This curious fact has been taken as the starting point for a witty post on the IPKat blog about a little-known country, Eponia:
a small landlocked state mainly based in Munich, though it has established colonies in The Hague, Berlin, Vienna and Brussels. Few people are born in Eponia (though it is rumoured that quite a few have been conceived there); most are settlers -- though they prefer to call themselves by a less provocative term, Examiners.
Here are some details about its financial operation:
One of the most buoyant economies in Europe, Eponia enjoys a unique and apparently inexhaustible source of income: patent tourism. Pilgrims come from far and wide to place their supplications before the local sages, or Boards of Appeal. Well-wishers also ply Eponia with money in order to obtain patents, cancel patents, amend patents or sometimes just to accelerate or retard the rate at which these much-desired services are delivered. Those whose petitions for a patent are successful often find that they are blessed with plenty, and that their influence extends from one end of Europe to the other. Some say that this good fortune can persist for getting on for 20 years, so long as occasional sacred donations, quaintly termed "renewal fees", are paid. What other country in Europe can offer such attractions? The horseshoe, the four-leaf clover, the leprechaun pale into insignificance in comparison.
And let's not forget about more elevated matters:
The national religion of Eponia is contained in a document known as the European Patent Convention, whose Articles (far more numerous than the Church of England's mere 39) are held to have been dictated directly into the ear of Blessed Bob van Benthem by a divine voice in the form of a holy hummingbird. While of less mystical origin, the Rules are also greatly revered. Like any sacred text, its superficial meaning is open to misinterpretation, and only specially trained priests are initiated into the deeper meaning of its rites and rituals (enigmatically referred to as "Guidelines"). When sufficiently inspired, those who are closest to achieving spiritual ecstasy can be seen and heard to be "talking in tongues", which embrace English, German and French -- but never Spanish or Italian.
It's a great piece, but its gentle humor exposes a serious point about the EPO: it is literally above the law. That could be a problem because of a major change to the European patent landscape: the introduction of the unitary patent:
A unitary patent will be a European patent granted by the EPO under the provisions of the European Patent Convention to which unitary effect for the territory of the 25 participating states is given after grant, at the patentee's request.
Unitary patents will be granted and administered by the EPO, and will have effect across most of the European Union. However, they will not be directly subject to the European Union. A perceptive paper by Dimitris Xenos, entitled, "The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe", explores some of the problems this could cause once the associated Unified Patent Court (UPC), the sole arbiter of unitary patent disputes, comes into operation :
The UPC will operate in relation to an upgraded framework of patents that are granted by the European Patent Office (EPO), with such patents being able to have unitary effect in all participating states (i.e. those which have approved the relevant EU Regulation). By replacing the jurisdiction of the national courts in enforcement and invalidity proceedings of such patents, the UPC will take exclusive competence to determine all disputes relating to patents with unitary effect. The new system has all the main characteristics of a federal court, apart from the name. However, although a federal structure is adopted, important elements are strikingly different. First, the EU states do not form a federation under which benefits are pursued for the common good of one state and second, there is no legislative authority to influence the economic policy which underlies the determination of the legal principles and standards that define patents as objects of property in the UPC system.
That emphasizes once more that the unitary patent system has been decoupled from the normal legislative and democratic processes of the European Union, and thus will be under no obligation to take heed of the economic interests of the European citizens. Here's why that is likely to be a problem:
There is no precedent in the political history of modern democracies where important property issues affecting the economic sustainability and development of a country, and the proprietary rights and business prospects of its people, were conclusively and exclusively taken by a judicial body at supranational level. A democratic policy-making process for the determination of patents as objects of property exists, of course, in all countries of the world, including the US, whose system the UPC tries to imitate. The difference is that the US unified patent system does not escape democratic control, and the economic policies that it serves are widely debated by legislators, judges, economists, lawyers and industry players, all of whom are residents of the same country.
It's still early days for the unitary patent and the Unified Patent Court, so it's not yet clear how the new system will work, and how serious the problems will be. The danger is that Eponia might turn out to be not so much a quaint oddity in the European political landscape as a dangerous rogue state with serious negative consequences for the region's businesses and citizens.
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Filed Under: above the law, epo, eponia, europe, patents, rogue state, uspto
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European politicians and civil servants must have felt that they needed an emergency safe haven, just in case they upset the people they are meant to represent.
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OK, US economy will fall.
EU:s economy will fall.
We all get proper Global Recession.
On the second hand, money (regardless of currency) is still imaginery so what could possibly go wrong?
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The thing is having a EPO instead of a patent office in each country has significant benefits and of course, some draw backs. The significant benefits are a more universal application of patents across Europe, and resolution of disputes that are not required to be repeated over and over again in each member country. The idea is there, and it's a good one.
The drawbacks are clear as well. It certainly does limit the ability for member states to enact legislation in this area. It means that unneeded patent extentions cannot be enacted in one country to protect local industry, or to artificially keep others out of a market.
The problem here is that the European isn't really a working federal system, it's still way to disjointed and has way too many moving parts. Start removing the extra parts from a process, and some people get upset.
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Care to point to specific items in the story which you think are false, or are you just being contrarian for the usual reasons?
That's not necessarily a good thing. Just take a look at how different countries have dealt with Apple's patents and ask yourself about the implications were the UPC to reach the same decision as the worst of these. Having your own patent court protects your own country's companies against bad decisions by others.
Interesting concept of "drawbacks" you have there. I'm not convinced it's true, though. Federalization does not prevent local industries from influencing policy, and it's not as if Europe as a whole doesn't have industries or markets it would seek to protect.
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Like many tales, the basis is in fact, which makes it easier and more palatable for people to swallow whole. You don't notice the logical gaps between the steps.
While it is correct that the offices are not controlled by the states directly (and they are treated in many ways like embassies), the EPO as a whole is created at the behest of the states and, according to Wikipedia is "The actual legislative power to revise the European Patent Convention lies with the Contracting States themselves when meeting at a Conference of the Contracting States". Thus the states do in fact control it.
Basically, the story draw two sides of a square, and let's you conclude you are looking at a triangle, when in fact it's a square.
When you understand that basic concept, you can understand the rest of the story is, well, a story. It's based in fact, but it's a bit of a flight of fancy because it ignores the source of actual control.
Having your own patent court protects your own country's companies against bad decisions by others.
You are correct, but that creates very problem this sort of organization is made to avoid. You can see it in the Apple / Samsung situation (recently mostly resolved or at least de-litigated), where a patch work of yes and no decisions makes it all but impossible for these companies to operate clearly inside the European Union. Economically, it's a disaster for both the companies and the public, who may be denied a product because they live on the wrong side of a border.
Federalization does not prevent local industries from influencing policy
Again, you are correct, but this sort of system means that countries cannot arbitrarily change the rules to try to gain advantage or extra protection for industries at the expense of others in the zone. It is a drawback for governments who lose that small economic lever, and a drawback for politicians who can't pull on it to curry voter favor.
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You didn't even hint at one of the most major drawbacks: it turns patents into a kind of contagion such that when bad patent law is enacted, there's nothing that individual states can do to fix it.
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We all pay, with goods whose cost consist to a third of a fee to the Eponians and to local lawyers.
We all pay, with innovation disrupted, and slowed down.
We all pay, with monopolist incumbents destroying smaller competition.
"The granting [of] patents ‘inflames cupidity', excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits...The principle of the law from which such consequences flow cannot be just." -- The Economist, July 26, 1851
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The EU and all its organizations are just organized crime that writes the laws.
Fuck them all.
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How?
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But as it is now the 21st century, I'm sure he could find some Corporate Sovereignty Tribunal to award damages, seeing as they are the real ones in power these days.
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Men In Black
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..the end is hardly nigh...
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