On December 13th, 2007, exactly 26 years after Poland called for martial law in 1981 in order to gain back control over the opposition, the European Union members have signed a treaty which became known as the Lisbon Treaty of 2007. This treaty practically establishes the European Union as a state of its own, along with a new constitution.

Most of the flaws which have been pointed out in the EU Constitution are also present in the Lisbon Treaty, but have not been addressed yet. As an example, the Lisbon Treaty contains provisions that the EU may go to war while individual member states may «constructively abstain» – thus being practically incapable of preventing having to go to war.

The Brussels Journal has an analysis of the contract by Professor Anthony Coughlan which enumerates 10 major changes the contract is making (while surely going too far to the Eurosceptic direction in suggesting that the harmonization effort in itself is wrong).

1. It establishes a legally new European Union in the constitutional form of a supranational European State.
2. It empowers this new European Union to act as a State vis-a-vis other States and its own citizens.
3. It makes all citizens of European member states also citizens of this new European Union.
4. The same name «European Union» will be kept while the Lisbon Treaty changes fundamentally the legal and constitutional nature of the Union.
5. It creates a Union Parliament for the Union’s new citizens.
6. It creates a Cabinet Government of the new Union.
7. It creates a new Union political President.
8. It creates a civil rights code for the new Union’s citizens.
9. It makes national Parliaments subordinate to the new Union.
10. It gives the new Union self-empowerment powers.

While the establishment of an European state is certainly a long-term goal to aim for, some elements of this treaty are still not acceptable. The current contract still contains some provisions which are not adequate for the constitution, and should be refined to meet the high democratic standards set by the member states.

The military cooperation charter a rather unfortunate chapter, remembering the controversy of the war against Iraq, which Germany and France chose to abstain. Would such a situation take place in the future, then Germany and France might be forced to participate in the war. This is of course one of the consequences of the harmonization process, but there should be provisions declaring that an unanimous decision is required in order to go to war – the only way to really justify it. An exception would of course be when an aggression against a member state has to be encountered.

This looks like yet another treaty which has not been balanced properly beforehand and needs a lot of further work before it will be adequate for the reason it was intended to.

After a long work in that area, the Foundation for a Free Information Infrastructure (FFII) has finally succeeded to get a court to invalidate Amazon’s One-Click Patent.

In the press release, the FFII representatives explain how the patent has been invalidated in two steps: first, the current claims were invalidated on the basis of lack of an inventive step, thus allowing Amazon to postulate new claims. However, these claims were dismissed as an infringement of Art. 123 EPC, revoking the patent in its entirety. 

The entire debate is a clear sign that clarification of the EPC provisions would improve the situation of legal uncertainty which we’re currently suffering.

The German Federal Court of Justice has decided in case Az. I ZR 102/05 that even stronger age verification mechanisms are required for providing access to adult content on the Internet. According to the Federal Court, the current practice of verification of ID card numbers and bank accounts are not sufficient, because any minor could gain access to this information easily.

The court proposes a verification process which involves the local postal delivery services. The deliverer is supposed to verify the age of the future web site user in an eye-to-eye process.

For the various providers of adult content which are not subject to German law, the Federal Court sees the Internet Service Providers in the responsibility to block the web sites in question.

In case Az. 5 C314/06 against the Federal Ministry of Justice, the District Court of Berlin Central has decided that all retained data must be deleted by the end of the contract with the customer. According to the judges, retention of data even beyond the contract period is a violation of the right to informational self-determination.

Starting from today, there is a new standardization organization doing its work in this world. It is known under the name OpenISO, and is an organization created by Norbert Bollow (who some of us might remember from thankpoland.info).

OpenISO is an organization which set out to create truly open standards, not based on a reasonable and not discriminatory (RAND) basis. OpenISO wants all information required to implement its standards to be free, so everyone can freely develop competing poducts that implement its standards.

So far, OpenISO has released a number of standards in the network area (such as the telnet protocol), and is now aiming at ECMA 376 in a Call for Participation.

After the death of the European Patent Litigation Agreement (EPLA) as an international treaty, EU-EPLA has been introduced, promising the same undesirable litigation to only the European Union. The core of the proposal is the creation of an European Judge Academy and a specialized Patent Court under the pillar of the European Court of Justice (ECJ).

Brigitte Zypries, the German minister of Justice, wants this court not to be lead by regularly appointed judges, but by so-called technical experts. She promises better examination of the technical substance of the patents in corresponding processes. These technical experts are basically just another name for Patent Agents who have passed the Judge Academy. But what are those Patent Agents anyway?

The Patent Agents

A while ago, the European Patent Office (EPO) created a new class of working men called patent agents. These patent agents act as “technical experts” (Zypries definition) in lawsuits where a patent is challenged, and provide their expertise to the judge in trying to assess the validity of a given patent.

So what does it take to become a Patent Agent? The straightest way to find out is to apply as a Patent Agent to the European Patent Office. The response from the EPO is short and clear: all that is required is a degree in a field of Engineering. Law degrees are not required, since Patent Agents are currently only functioning as experts in court cases, and thus competence in legal questions is not a criterion.

This renders the whole idea quite absurd to send these patent professionals to a Judge Academy for some short period of time and to appoint them as judges who have to make legally valid decisions. A large number of legislations even require judges to have a law degree. A patent professional cannot be expected to make legally intelligent decisions.

Still no Division of Powers at EPO

But the problem in terms of legal issues goes even further. Currently, the EPO is one of the few international agencies which does not adhere at all to the principles of Division of Powers. Patents are granted by the EPO, which constitutes the legislative branch, and part of the enforcement process is also going through the EPO, which is the executive branch.

If EPO-educated Patent Agents are now entering the judicative branch, this means that this branch is also going to be under control of the European Patent Office. This means that the third pilar of a democratic society, the judicative branch, is going to be held by the same organization which holds the legislative and executive branch. This constitution of powers should be considered highly undemocratic, as the Division of Powers is one of the main principles of a democratic society.

There is no problem with Patent Agents as experts to judges which provide them with facts about the assessed validity of the patent in question (Well, it is still a bit problematic since these experts are coming from the same entity which originally granted the patent), but there is a serious problem if one organization gains total power over their entire legislative process.

What must also be considered is that the European Patent Office is not an EU institution, and as such not under democratic control by the European Parliament. This makes the entire constellation even more problematic, since there is basically no democratic body controlling the EPO.

Pseudo Decentralization

Another issue with the proposal is that it introduces some artificial decentralization by establishing local patent courts. The idea is that a number of countries share one patent court, which might give a decentralized impression at first glance but is not decentralized at all on the second. A real decentralized patent court would mean that every country has its own patent court which elects its own set of judges.

In the case of EU-EPLA however, the European Union provides the regional courts with the technical judges, whose identity and meaning has been outlined some paragraphs above. This means that the individual member countries have no control over their local courts.

Dividing and Conquering

The last problem is more on the economic side as well as a problem with harmonization. Currently, there is no clear regulation in the European Union on how to deal with processes where patents are challenged. Thus, there are two different ways to deal with such challenges.

The first way is rather straightforward and is deployed in countries like Sweden. The procedure is rather easy: if the validity of the patent is challenged, then it will have to be decided on during the same process, along with the applicability of the same patent. This means that the plaintiff has to balance the scope of his patent very well because if his claims are too broad, the patent will be invalidated, and if they are too narrow, the patent will simply not be applicable in the proceedings because it will not cover the committed infringement.

However, in Germany and some other countries, a different procedure is in place. This procedure defines that a second process is created, potentially even at a different court. This means that potentially a different judge will be handling the patent validity case. This again means that the plaintiff could assume a very narrow set of claims for the patent validity case, while a very broad set of claims can be used in the applicability question in order to have a very broad infringement of the patent. This is only possible because the two cases are disjunctive.

This is just one more case of harmonization with the hammer. There are clear economic advantages of the first procedure, but nevertheless the second procedure is supposed to be harmonization but without any proper discussion of the issues. With all these problems, it is clear that this proposal is not in the best interest of the member states to accept this proposal. It is desirable that these issues are cleared up before the proposal can be accepted or rejected. Once there is a proposal which adheres to the democratic principles, a pan-european patent agreement is certainly warmly welcome.

History of IPRED2 

Back in 2004, the European Commission announced that, following the Intellectual Property Rights Enforcement Directive part 1 (IPRED1), a second part would be released to refine the measures as appropriate. This second part, IPRED2, would be released once IPRED1 would be implemented in the entirety of Europe, and once the experiences of the impact of IPRED1 would have been gathered.

But it appears that the Commission got impatient after this, and IPRED2 was already drafted early in 2005. However, objections had been raised in front of the European Court of Justice (ECJ) as to whether the European Commission had the competence at all to create criminal legislation for the entirety of the European Union. The ECJ decided that the Commission did not have this competence, and sent several legal documents back to the drafting table, including the IPRED2 directive proposal.

Despite the fact that IPRED1 still was not implemented in all member states and no experience had been gathered, the Commission started anew in 2006 with a new IPRED2 draft. This draft is presented to the European Parliament by Rapporteur Nicola Zingaretti, and has passed the European Council as well as the parliamentary expert gremia JURI, ITRE and LIBE and the plenary vote.

However, the law is not final yet. Due to express requests from parliamentarians, the release of the law in the official journal of the European Union, which would make it legally binding, has been postponed, in order to allow the issues which have been raised to be discussed.

Issues with IPRED2

The main problem with IPRED2 is that it is formulated in a way too broad fashion. During the conciliation phase, the legal proposal has already been improved in some way, but the problems remain: IPRED2 imposes criminal sanctions on undisclosed infringements on intellectual property rights. The problems with this have been outlined in a FFII paper called “To Lisbon or to Prison” by the FFII.

There is also a detailed analysis of IPRED2 from Vrijschrift.

A sign of lack of harmonization?

IPRED2 is also often referred to as a piece of “Italo-legislation”. This is of course not meant as an insult, but it is a consequence from the fact that the Italian legal system works differently from, for example, the German legal system.

In Italy, legislation is always formulated in a very excessive way and then the jurisdiction sorts out the problems with their judgment on the applicability of the legislation. However, in Germany, what is written in law is always applicable and will be applied, so the impact of such broad formulations will be a lot higher in some European countries than in others.

The only possible interpretation for this problem is that the European Union is not ready yet for legislation of such immense importance. Before criminal sanctions can be harmonized, there must be a common basis for interpretation of the legislation.