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Wednesday, 21 September 2011

Ahoy there! Pirates going legit

The German Pirate Party has won 14 of the 130 available seats in the recent local parliament elections (see link). Normally the IPKat wouldn’t be reporting German elections, but the interest lies in the manifesto of the Pirate Party. These modern progressive Pirates are not interested in pillaging, plundering and keeping all the booty for themselves. Rather, they want everyone to share their ill-gotten profits: more Robin Hood than Long John Silver. Their manifesto is along the same lines as the UK Pirate Party, previously reported by the IPKat here and available here and includes the abolition of pharmaceutical patents and reduction of copyright protection to ten years. Ignoring whether the Pirate Party could make these changes (which would presumably require Germany to resign from a number of international treaties and organisations) how would Germany look if the Pirate Party gets its way?

Immediate thoughts are that no innovator pharmaceutical company would want to sell their products there, but of course this wouldn’t really matter to Germany because any generic company could set up shop and manufacture and sell their own versions. So the health of the population may not necessarily suffer, quite the reverse: the availability of cheap drugs could make Germany a go-to medical destination. Would pharmaceutical research departments and innovator companies move out of Germany? If they were still able to file for European Patents designated for other countries at the EPO then presumably there would be no mass exodus of R&D. Just a lot of healthy researchers filing GB etc designated patents.

Cultural life? Music, films and books are all easily transferred across the border on the internet and in print, so I don’t suppose the German people would lack for material being imported.

Gadgets, tools and machinery? Would Mercedes, Porsche and BMW continue to push the boundaries of automotive design and invention? The same logic as for pharmaceutical patents applies – companies could continue to be based in Germany (availing themselves of the cheap pharmaceuticals) and file non-DE designated EPs. In any event, the Pirate Party is not advocating the abolition of all patents, only threatening to roll back the “ever-growing tide of trivial, incomprehensible, overreaching patents”. They will do this by:

(1) “raising the bar on how innovative an idea has to be before it can be patented” [Merpel thought absolute novelty was already required…]
(2) “prohibiting patents on software, business methods, concepts, colours and smells.” [Good idea, says Merpel, but she is sure she’s seen rules like that before…]
(3) “We will require a working model to be provided to the patent office before a patent is granted” [Merpel thinks it will be a lucky business that wins the warehousing contract for the patent office]
(4) “we will strictly enforce the current rule that patents are invalid if they are "obvious to someone skilled in the art". [Merpel recommends revoking the patent]
(5) “We will allow more competition in the manufacture of patented devices by introducing a system of compulsory patent licensing, and we will provide exemptions to patent law for non-commercial use, personal study and academic research.” [Good idea, says Merpel, but she is sure she’s seen rules like that before…]
Interestingly, there is no talk of how the Pirate Party would handle infringement of IP rights - perhaps the easiest way to achieve their aims would be to disband the IP courts (come the revolution, the Dusseldorf court would surely be first up against the wall! See here)

So Germany might be a land of cheap generic drugs, counterfeit fashion goods, low quality electronic goods, familiar-looking restaurants serving food tasting not quite as anticipated…. hang on – I know a country like that! As China drags its IP laws and practice into the 21st century, Germany is on course to take its place.

We should note that the international Pirate Party is a moderate force in the world of anti-copyright activists, recently calling for members of Operation Payback to cease their attacks.

9 comments:

Graham Barker said...

Sounds to me as though the Pirate Party isn't going anywhere near far enough. A 'proper' patent system shouldn't protect ideas at all, because they're ten a penny. What it should protect is what is DONE with an idea. (For a bit more on this see http://bit.ly/qfamod.)

It does however seem perfectly sensible to suggest that applicants lodge physical evidence with their applications (as USPTO used to require, or so I'm told). A warehouse might not be needed - most could be photographed then taken away again, for the applicant to retain for the duration of the patent.

Anonymous said...

I just wanted to mention that the current Pirate Party UK manifestos can be found here

Pete said...

Fun post. Is there such a thing as legal science fiction?

This seems a bit unfair, though:

So Germany might be a land of... counterfeit fashion goods, low quality electronic goods, familiar-looking restaurants serving food tasting not quite as anticipated

Surely those are all trademark problems, and I can't find anything in the Pirate Party manifesto about trademark.

Also, I think various bits of Europe actually tried abolishing their patent systems in the 19th Century. Clearly it didn't work out.

Anonymous said...

The "working prototype" idea seems curiously fashionable among patent system critics these days. In my opinion, when somebody proposes it, it is a clear sign that he doesn't know anything about patents. Or engineering, for that matter.

MaxDrei said...

Perhaps, anonymous, those critics know more about regulatory agencies and requirements for thoroughgoing clinical trials than they know about how many patents there are in AUDI's latest model?

Does not the UK Patent Office have a museum of models submitted by 19th century applicants for engineering patents?

Anonymous said...

While it is perfectly right that the Pirate Party's policies should be examined, and that the IPKat should be well-placed to do that, this post doesn't seem to be one of your better efforts. For one thing, as Pete has pointed out, in your comment about "a land of cheap generic drugs, counterfeit fashion goods, low quality electronic goods, familiar-looking restaurants serving food tasting not quite as anticipated", three of the four relate to trade marks and none of the bits you have quoted relate to these. (At a quick glance they aren't mentioned in the manifesto you linked to either - though I note that this is the UK rather than German Pirate Party.) Also, to take up the numbered points:

(1) "innovative" does not mean the same as "novel", it presumably includes being non-obvious as well, and the PP probably have a different view of what counts as obvious from a patent lawyer.

(2) A news story from today includes "Lest we forget that Microsoft still insists Linux violates 235 of its patents...". In the Pirate Party's Germany, presumably all a Linux user has to do is simply say "Look, Linux is *software*". I'm sure matters are not as straightforward in present countries, even those in Europe.

(4) They probably think obvious patents shouldn't be granted in the first place!

Ron said...

The old UK Patent Office Museum's collection of models of inventions was sent to what is now the Science Museum at South Kensington in 1857, originally for 5 years, but in practice permanently.

Anonymous said...

Perhaps, anonymous, those critics know more about regulatory agencies and requirements for thoroughgoing clinical trials than they know about how many patents there are in AUDI's latest model?

Considering that such "thoroughgoing clinical trials" typically cost in the hundreds of millions of dollars/euros/pounds, I don't think so.

In any case, one of my clients builds aircraft engines. I'm sure that both them and the patent examiners would be just thrilled if demonstration of a working prototype was required each time they filed a patent application (and this, even if the aviation authorities do require flight tests for certification)...

Anonymous said...

While the US requirement of actual reduction to practice was generally superseded some years ago by constructive reduction to practice [so that computer simulations are considered to be sufficient reduction to practice], as of 10 years ago the old requirement continued to apply to secret inventions, where actual reduction to practice had to be demonstrated before the inventor could get any compensation for use of the invention from the US Government. I do not know if this is still the case.

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