Free Software Linux

The Commission agreed on a "roadmap to advance global patent harmonisation" with the United States to get the substantive patent law treaty (SPLT) talks back on track. The unusual aspect of that news is that an agreement on the road map was reached during last month trade talks in the Transatlantic Economic Council. The Commission has formally no legislative competence but only a right of proposal. This makes bargaining over regulatory issues with transatlantic partners a very controversial subject from a liberal-constitutional perspective, in particular in the context of trade talks which generally shall serve no political agenda except mutual removal of barriers to trade1. Also lifting an import ban on chloride treated poultry and a reopening of the REACH regulation were agreed upon in Brussels.

TEC is a funny process. The EU Commission basically bows unilaterally in to aggressive US demands in order to demonstrate its ability to act without getting anything substantial in return from the Americans. The agenda is largely set by the TABD, i.e. large industry stakeholders based in the US. At the press conference Verheugen admitted the lack of competence. Apparently Council members were not fully made aware of the deliberations. Also the consumer group token formally attached to the TEC process, the TACD, were not in possession of the road map document. Its counter part TABD, the transatlantic business dialogue, comprising mostly American multinationals and no SMEs, seems to define the agenda for the transatlantic trade talks and openly tells so.

Alfonso Calles Sánchez from the European Commission announced me today the road map document was finally made available on their website.
Here is the original document:

European Commission-US roadmap to support and facilitate international patent law harmonization
During the first Transatlantic Economic Council (TEC) Meeting on 9 November in Washington D.C., Charlie
McCreevy, European Commissioner for Internal Market and Services, and Carlos M. Gutierrez, US Secretary of
Commerce, agreed that by the next meeting of the Council (end of May 2008), the U.S. Government and
European Commission will agree on a roadmap to support and facilitate international
patent law harmonization. The goal is to make progress towards an efficient and effective global patent
system, especially within the so-called Group B+.
1. The European Commission and US will cooperate at a technical level to lay groundwork for higher level EC-US contacts and will coordinate in advance of upcoming meetings with other Group B+ members and stakeholders with a view to facilitating progress in those discussions. Timeframe: May-September 2008
2. The European Commission intend to discuss with EU Member States on the Alexandria process and the activities mentioned in this roadmap in the framework of the B+ Group. Timeframe: May-September 2008
3. The European Commission and US will cooperate in informal B+ WG1 consultations organized by the WG1 Chair on the basis of the timeline/modalities agreed on the margins of 12 March Trilateral meeting in Munich. Timeframe: May-September 2008
4. The European Commission and US will take note of stakeholder views, in particular at meetings tentatively scheduled to be held in Brussels in May 2008 and in Washington in June 2008. Both sides will share the outcome of consultations with each other and other B+ members. Timeframe: May-July 2008
5. The European Commission and US will exchange views on the draft document to be provided by B+ WG1 Chair as requested during 2007 B+ Plenary, and share those views with EU Member States. Timeframe: May-August 2008
6. The European Commission and US will hold a senior level meeting, as appropriate, to coordinate for the Group B+ Plenary, tentatively scheduled for September 2008. Timeframe: September 2008 (before B+ Plenary)

What is the b+ group? In short its industrial nations, a sub group of WIPO member states. And it includes a trouble maker as Brazil. Substantive patent harmonization is currently mostly blocked because the United States is stuck to perform the switch to a first to file regime and certain developing nations try to water the SPLT down with quite a success. The current draft of the SPLT is an empty cover of what it was supposed to achieve. The most simple way to achieve substantive patent harmonization is to expand the signatories of the Munich convention.

The surprising aspect of the road map is the mandate for the Commission to negotiate with the US and the very tight schedule. The Commission would "share those views with EU Member States", quite a hybris in EC legislative matters. As of the consultations they would only give the Transatlantic Business Dialogue any significant means of influence. The European Parliament will not even be consulted.

Footnotes 1. Cmp. also the criticism of Jagdish Bhagwati on the TRIPs process where patent legislation flexibilities were entered into the GATT process (aimed at removing trade barriers).

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