European Patent System, Court Top Priority Under Swedish EU Presidency

COPENHAGEN – A top priority for Sweden as it takes over the EU presidency on 1 July is to boost negotiations on a Community patent system and a European Patent Court, the government says. Its work programme also emphasises the need for “effective protection of intellectual property rights” and lists a conference on enforcement. Officials, however, deny that enforcement is among the presidency’s main IP focus. And the Pirate Party is concerned.

“I would not say that it is a priority to have stronger sanctions or IP enforcement, but the Swedish government is in favour of an efficient and well-balanced IP system,” Christine Lager, director of the Division for Intellectual Property and Transport Law at the Swedish Ministry of Justice, told Intellectual Property Watch, adding that this also applied to a well-balanced enforcement system. She notes that there are always different interests involved in the area of intellectual property, and the government aims to “listen to all.”

During the Swedish EU presidency, a conference on “The Enforcement of Intellectual Property Rights” will be held in Stockholm on 15-16 December. This is the only IP-specific conference scheduled. In its work programme for the six-month presidency, Sweden also states that, “Effective protection of intellectual property rights is also crucial to how well the EU can make use of existing innovation capacity.”

But to achieve as much progress as possible on a Community patent and litigation system – the draft European Patent Litigation Agreement – is “definitely [a] top priority,” Lager said (IPW, Enforcement, 23 November 2007). She adds that this is not only a priority when it comes to intellectual property, but “among the highest priorities within the area of the [EU] Internal Market.”

The Pirate Party – which with its objections to the patent and copyright system as a party platform won one seat in the European parliamentary elections recently – sees the government’s plans “with a great deal of concern,” vice-chairman and Member of Parliament Christian Engström told Intellectual Property Watch (IPW, Access to Knowledge, 5 June 2009). He said they had “in no way at all” been consulted on this issue but would be active both in Sweden and Brussels. Engström said the Pirate Party is very critical to what they regard as “an attempt to expand the patent system.”

“It is obvious that the Swedish government has a maximalistic line when it comes to IP,” Engström said, referring to the implementation of the EU Enforcement Directive on 1 April, and the presidency plans (IPW, Enforcement, 3 August 2007). “We hope the government will seek a dialogue with us,” he said.

The ideas of the Pirate Party are indeed not featured in the presidency’s work programme.

But Carl Josefsson, chair of the EU Working Party on Intellectual Property and deputy director at the IP Division of the Swedish Ministry of Justice, told Intellectual Property Watch that the presidency will continuously have consultations with the Swedish Parliament and also the European Parliament.

“This will eventually be on the table for the European Parliament” if it succeeds, he said. No specific hearing is planned, but Josefsson said the Swedish government is meeting with concerned parties on a regular basis. “[Our] ambition is to be transparent and open,” he said.

Since the 1970s

The idea of creating a Community patent system, meaning that one patent applied for and granted in one of the 27 European Union countries would apply to any member country, have been underway for many years. The discussion is also part of a “package” in which a European litigation system, or a European Patent Court, is a second component.

In its work programme, Sweden states that, “The presidency will work towards making as much progress as possible in the negotiations on the Community patent and the European Patent Court.” It continues: “The creation of a cost-effective Community patent and a patent litigation system is important for the innovation climate in Europe and thus for EU competitiveness.”

The Community patent discussions have been slowed down by a number of protests from civil society, arguing that one patent and litigation system would make it difficult to identify misuse of the system and to reverse a patent that has been wrongly issued. Today one can apply for a patent in a single EU country, or in a group of countries through the European Patent Office, but these will be a bundle of nationally enforceable patents. But there is not a system in place through which one gets a blanket patent ticket for all of Europe.

One may ask why this is the Swedish presidency’s top IP and Internal Market priority considering that the negotiations have been underway in various forms since the 1970s. But Josefsson said that negotiations had restarted in 2007, and since then there had “been a steady progress.”

Josefsson said the Swedish presidency would build on this momentum and what he said had been “real progress” made under the Czech presidency, which has been at the helm since January. For example, on 25 June the Council of Ministers requested an opinion from the European Court of Justice [doc] “on the compatibility with the EC treaty of the envisaged agreement creating a Unified Patent Litigation System.”

Moreover, on 28 May, the Competitiveness Council adopted the conclusions of a progress report [doc] from the Czech presidency on the Community patent discussions, Josefsson said. It states: The Council instructed its preparatory bodies “to continue work on the patent litigation system and the Community patent with a view to finding solutions and reaching agreement in both areas as a matter of urgency.”

Josefsson said these developments constitute “a strong political momentum.” He added that the Swedish presidency will continue work “intensively” in the working party, which is a preparatory body under the Council of Competitiveness, meeting in Brussels.

But the main argument for continuing the discussions is the need for it, Josefsson said: “The urgency of making the patent system in Europe less costly and more accessible to particular small and medium-sized enterprises is there.”

The software industry supports the Swedish efforts. Jonathan Zuck, president of the Association for Competitive Technology, said: “The Swedish presidency’s commitment to move the EU Community Patent forward is a breath of fresh air. We wish the new presidency all the success in their negotiations to achieve the agreement that SMEs have been waiting for so long.”

Other Priorities

Among other IP priorities will be to work on ongoing projects such as the EU Anti-Counterfeiting Trade Agreement (ACTA) and discussions in the World Intellectual Property Organization (WIPO) regarding blind people’s access to copyright-protected material. Sweden will especially work for better transparency in the ACTA negotiations, Lager said. IP issues may also be touched upon in the area of research and innovation, Lager said.

According to the work programme, Sweden will also “submit a contribution to a European Innovation Plan, with links to the European Research Area.” It states, “Innovations will be extremely important in transforming Europe’s business sector so that it becomes more sustainable and makes use of sustainable production and consumption requirements to strengthen competitiveness.”

Pirate Bay to be Sold

Separately, another Swedish initiative that has challenged traditional IP over the past years, The Pirate Bay website, will be sold to the listed gaming company Global Gaming Factory X (GGF) for SKr60 million ($7.83 million), according to GGF. The idealistic site dating back to 2003 will thereby be turned into a commercial site.

There is some confusion about exactly how the site will work. But GGF says it wants to develop a new business model so that the file-sharers earn money, and copyright owners and content providers get compensated. When downloading music and film, however, users have to pay like the iTunes sysem, according to Dagens Nyheter. GGF will also have ads on the site and get deals from broadband operators. But the idea has been met with strong criticism.

Peter Sunde, one of the founders of The Pirate Bay, told Svenska Dagbladet that they sold the site because they were not able to take it forward and develop it further. GGF is not concerned that Pirate Bay is involved in a court case (IPW, Access to Knowledge, 26 April 2009). The GGF does not at the moment have the kind of money the purchase requires, but it says private Swedish investors will soon be revealed, according to Dagens Nyheter.

GGF has also purchased the company Peerialism for Skr100 million. It has developed a new technique for filesharing, P2P 2.0, according to GGF.