For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Thursday, 28 June 2007

Multilingual IPKat conquers EPO

Now at last the story can be told! The IPKat has taken over the European Patent Office. IPKat team member and famed multi-blogger Jo Gibson has stormed the EPO's Munich fortress by posing as Eva Peron. Once installed, she issued the following communique (you'll find it on page 9 of the EPO's Annual Report, which you can obtain here):

“TO EXPECT THE IP SYSTEM TO CARRY THE ENTIRE BURDEN CREATES A PERCEPTION THAT INTELLECTUAL PROPERTY ITSELF IS MUCH BIGGER THAN ITS CAPACITY TO PROVIDE INCENTIVE AND REWARD FOR COMMERCIAL TRANSACTIONS IN KNOWLEDGE, BUT IT IS NOW BECOMING THE ETHICAL JUDGE, THE ARBITER OF MORAL DEVELOPMENT”
(IPKat colleague Jeremy explains why this statement is reproduced here in capitals. This is because typing in upper case is like shouting, and it is well known that non-English speakers often gain an excellent comprehension of the language when you shout at them, as generations of pro-European English tourists abroad can attest. Perhaps the European Court of Justice will get the hint and publish ECJ and CFI decisions in English, printed in capitals, to save having to pay so many translators ...).

Being a cultured citoyen d'Europe, Jo is then quoted as saying the whole thing in French:
"Attendre de la propriété intellectuelle qu’elle endosse toute la charge crée l’illusion que la propriété intellectuelle dépasse de loin sa capacité à motiver et à récompenser le commerce du savoir, mais elle est en train de devenir l’instance morale, l’arbitre du développement en matière d’éthique".
Then comes the coup de grace - the same message, this time in German - which is only right and proper, since Germany has hosted the EPO for nearly 30 years:
"Wenn man dem System des geistigen Eigentums diese ganze Last aufbürdet, entsteht der Eindruck, dass geistiges Eigentum als solches viel mehr kann als durch Anreize und Lohn den geschäftlichen Umgang mit Wissen zu fördern; de facto wird es nun zum ethischen Richter, zum Schiedsrichter in Fragen der moralischen Entwicklung".
On a more serious note, Jo's point should be carefully pondered. The patent system may have been born of economic considerations but that does not make patent protection the exclusive property of the economist: moral and ethical dilemmas, many of them more finely poised than we may care to admit, do not disappear just because you can't find them in the annual accounts. Likewise, the patent system addresses technical advances but that does not make it the private domain of the technologist, for much the same reasons. If the patent system delivers what we ask of it, but we don't like what has been delivered, the fault lies not within the patent system but within ourselves - in our capacity to design a system that protects and incentivises innovations with ambivalent moral quality, and in our tolerance of such anomalies as the acceptance that an innovation is too immoral to enjoy patent protection but not so immoral as to be banned from use.

8 comments:

David said...

But should the EPO itself be making any moral judgments on our behalf, or judging what would be contrary to the ordre public (whatever that is)? I think not, and hope that the arbiters at the EPO do not start down that path (have they already?).

Well done Jo for getting such great exposure.

Peter Finn said...

You are missing the point of the Scenerio's project entirely (see http://www.epo.org/focus/patent-system/scenarios-for-the-future.html).

The project is not looking at the role of the EPO, but about the role of intellectual property itself. They are distinct things (something that on occasion you seem to forget).

The project interviewed a number of key players in intellectual property. A handful of comments from these leading thinkers are included in the annual report. You might like to read them before casting such uninformed comment.

Anonymous said...

Indeed, the EPO's Scenarios for the Future project was all about making the debate(s) more accessible to everyone - hence, comments both pro and anti were included and were designed to encourage debate. The results reflected the view that it is not clear who or what view of IP will dominate over the longer term and that we can not make assumptions about the path.

David said...

I stand by my comment above, regardless of how you want to interpret it. Personally, I don't believe that intellectual property should be about making moral decisions at all. Getting a patent for something is not the same as being allowed to do that something, which some people tend to get rather confused about.

Anonymous said...

Another view is that the 'Scenarios for the Future' is a load of pretentious old twaddle dreamed up by people who don't have to live in the real world. Counting the number of angels on the head of a pin has nothing on this.

Anonymous said...

David's view may be more apt in relation to patents than trade marks. For those interested in the legal history of 'ordre public' you could do worse than read Richard Arnold's FCUK TM decision on the UK-IPO site.

Anonymous said...

I see that David would side with Hart, rather than Devlin? Am I right?

David said...

There is a place for moral judgments in law (e.g. killing people is generally wrong), but there is no need for them to apply to the granting of IP rights. I don't think I need to take either side in the Hart-Devlin debate.

If I came up with a novel and inventive method of torture, applying for and being granted a patent for it would not harm anyone at all. Carrying out the method would, but this would be illegal anyway. What is the point therefore of making moral judgments on whether a patent (or trade mark) should be granted? Patent offices should be only concerned with doing a proper job of examining applications.

Incidentally, many (if not all) of the problems discussed in the EPO 'Scenarios' document would not be problems at all if the various patent offices (and courts) around the world simply did their job properly.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':